Amendments to the Michigan Sex Offender Registry Act (SORA)
© May 2011 Law Office of Paul R. Jones Esq.,
NOTE: On January 14, 2015, the Sex Offender Registration Act MCL §28.722(s) was amended to add engaging or offering to engage the services of a minor for purposes of prostitution, MCL §750.449a(2), to the list of crimes constituting a Tier I offense.
MCL §28.722(u) was amended to add commercial sexual activity involving a minor, MCL §750.462e(a), to the list of crimes constituting a Tier II offense.
If you or someone you know was convicted of sexual misconduct they may qualify to be removed from the sex registry list and excused from further State Police notification under the amended SORA Act as found at M.C.L. §28.721 et seq, effective July 1, 2011. For a youthful offender who in Junior High or early High school was otherwise an innocent adolescent convicted during a relationship with a childhood sweetheart, the new amendments to Michigan’s Sexual Registry Act provide a “Romeo and Juliet” exemption that allows a “minor” as defined by the act, who was convicted for a sexually related offense including a CSC, relief from the registry listing as a sex offender under SORA that may otherwise extend for many years beyond their 18th birthday. A petition under SORA is the sole means by which an individual may obtain judicial review of his or her registration requirements. A petition under the Act does not prohibit an appeal of the conviction or sentence as otherwise provided by law or court rule. A petition filed under the Act must be filed under oath in the court in which the individual was convicted of committing the listed offense. However, if the conviction occurred in another state or country and the individual is a resident of this state, the individual may file a petition in the circuit court of the county of his or her residence for an order allowing him or her prior to sentencing or disposition, to be exempt from registration or afterward to discontinue registration under this act only. SEE Petitioning for Removal from the Sex Offender Registry, PREPARED BY Michigan State Appellant Defenders Office (SADO) 2012 NOTE: Individuals who are currently on the Michigan Sex Offender Registry may only submit a petition for removal ONCE. A petition shall not be filed under this section of the Act if a previous petition was filed under this section and was denied by the court after a hearing. The victim has the right to attend all proceedings and to make a written or oral statement to the court before any decision regarding the petition is made. However a victim shall not be required to appear at any proceeding under this section against his or her will.
Be sure to check out the Frequently Asked Questions (FAQ) section on this site for more info.
The amendments now re-definition a “listed offense”, and categorize offenses subject to the Act’s registration and reporting requirements as Tier I, Tier II, and Tier III offenses as shown in Table 1. The Act requires Tier I offenders to comply with the Act for 15 years and report annually; requires Tier II offenders to comply for 25 years and report biannually; and requires Tier III offenders to comply for life and report quarterly. Like the current definition of “listed offense”, each tier would include an attempt or conspiracy to commit an offense designated in that category, and an offense substantially similar to a designated offense under a law of the United States that is specifically enumerated in 42 USC 16911 (which defines terms used in the Federal Sex Offender Registration and Notification law), under a law of any state or any country, or under tribal or military law. The statute also refers to a law specifically enumerated in 42 USC 16911 in the definition of “listed offense”. A “Tier I offender” means an individual convicted of a Tier I offense who is not a Tier II or Tier III offender. “Tier II offender” means either a Tier I offender convicted subsequently of another Tier I offense, or an individual convicted of a Tier II offense who is not a Tier III offender. A “Tier III offender” means either a Tier II offender convicted subsequently of another Tier I or Tier II offense, or an individual convicted of a Tier III offense.
Table 1
Listed offenses under MCL §750 of the Michigan Penal Code
145a – accosting/soliciting child for immoral purpose. Tier II
145b – accosting/soliciting with 1 or more prior convictions.Tier II
145c – child sexually abusive activity/material. Tier I
145c(4) – possession of child sexually abusive material. Tier I
145c(2) causing or allowing child to engage in child sexually abusive activity or material. Tier II
145c(3) – distribution or promotion of child sexually abusive activity or material. Tier II
145d – use of the internet to commit 145a, 145c, 157c, 349, 350, 520b,
520c, 520e, 520g, or 722.675 – if victim is a minor. Tier II
158 – sodomy if victim is a minor Tier III*
335a(2)(b) – indecent exposure involving fondling – repeat offense Tier I (3)
338, 338a, 338b – gross indecency if victim is a minor. Tier II (1) Tier III (2)
349 – kidnapping if victim is a minor.Tier III
349b –unlawful imprisonment if victim is a minor. Tier I
350 – enticing a child under 14 from his or her parents. Tier III
448 – soliciting a person to commit prostitution or immoral conduct if victim is a minor. Tier II
455 – pandering (enticing a person to become a prostitute). Tier II
520b – criminal sexual conduct (CSC) 1st degree. Tier III *
520c – CSC 2nd degree. Tier I (4)* Tier II (1)(6)* Tier III (2)
520d – CSC 3rd degree. Tier III
520e – CSC 4th degree. Tier I (4)* Tier II (1)(6)* Tier III(5)*
520g(1) – assault with intent to commit CSC- sexual penetration. Tier II (3)*
520g(2) – assault with intent to commit CSC- 2nd degree. Tier I (4); Tier II (1)(6); Tier III (2)
539j – surveillance or photography of unclothed person in violation.of his/her privacy -if victim is a minor. Tier I
LEGEND:
1) Against a minor aged 13 or older.
2) Against a minor under 13.
3) Against a minor.
4) Against a person aged 18 or older
5) committed by an individual 17 years of age or older against an individual less than 13 years of age.
6) committed against an individual 13 years of age or older but less than 18 years of age
The offenses denoted with an asterisk* would not be considered listed offenses if the court determined that the victim consented to the conduct constituting the violation, that the victim was at least 13 years old but younger than 16 at the time of the offense, and that the individual was not more than four years older than the victim. In addition, these tier I, II and III offenses would not be considered listed offenses if the victim consented, the victim was at least 17 years old at the time of the offense, and the victim was not under the individual’s custodial authority at the time of the violation. §28.722 (c) defines the term “custodial authority” in several ways and must be reviewed carefully.
A “conviction” also means being assigned to youthful trainee status, MCL §762.11 to §762.15, on or after October 1, 2004 if the individual’s status of youthful trainee is revoked and an adjudication of guilt is entered. An “adjudicated juvenile” may also petition to discontinue registration if he or she has successfully completed his or her probationary period for committing a listed offense and has been discharged from youthful trainee status.
RE: THE ROMEO AND JULIET PROVISIONS:
WHO IS A ROMEO AND JULIET OFFENDER?
An individual currently required to register on Michigan’s Sex Offender Registry may petition for immediate removal from the registry, if the offense was the result of consensual sexual activity, AND EITHER
1. ALL of the following are true:
A. The victim was at least 13 years old, but less than 16 years old.
B. The offender was not more than 4 years older than the victim OR,
2. ALL of the following are true:
A. The offender was convicted of:
i. §750.158, Crime against nature or sodomy against victim under 18 OR
ii. §750.338, 750.338a or b, Gross Indecency victim 13-17 years old OR
iii. §750.520c(1)(i), 2nd Degree CSC and “that other person is under the jurisdiction of the department of corrections and the actor is an employee or a contractual employee of, or a volunteer with, the department of corrections who knows that the other person is under the jurisdiction of the department of corrections.”
B. The victim was 16 years or older at the time of the offense.
C. The victim was not under the custodial authority of the offender at the time of the offense.
“Romeo & Juliet” Exemptions from Registration under the SORA
WHO IS ELIGIBLE TO PETITION FOR A SHORTER REGISTRATION?
A. Juveniles aged 14-16 who committed a TIER III offense and who have not re-offended are required to register for life on the non-public registry, but may petition for removal after 25 years.
B. All Tier I offenders, are required to register for 15 years, but may petition for removal after
10 years if they have not re-offended AND the court determines removal would be just.
The actor is not required to register under the SORA if the individual or the juvenile has satisfied their “burden of proof” by proving by a preponderance of the evidence at a hearing, that the circumstances surrounding his or her conduct falls within the exceptions described in MCL §28.722(u)(v), MCL 28.722(u)(vi), or MCL §28.722(w)(iv). [MCL §28.723a]. The rules of evidence (including the Rape Shield Statute MCL §750.520j ), do not apply to the hearing. [MCL §28.723a(3)].
The “Romeo & Juliet” exceptions in MCL §28.722(u)(v), MCL §28.722(u)(vi), and MCL §28.722(w)(iv) apply to criminal and juvenile cases pending on and to cases brought on or after July 1, 2011. {MCL §28.723a(7)}.
Romeo & Juliet Exception for Select Tier II and Tier III Offenses.
The “listed offenses”, as reorganized in the amended SORA, include specific circumstances under which offenders who engaged in conduct described in MCL §28.722(u)(v), MCL §28.722(u)(vi), and MCL §28.722(w)(iv), may avoid SORA registration.
Romeo & Juliet Exception for Select Tier II Offenses:
Under two specific circumstances, an actor may claim an exception to the registration requirement for conviction of MCL §750.158 (sodomy) involving a minor. See MCL §28.722(u)(v). To successfully claim this exception, the actor must satisfy either of two conditions:
I. All of the following:
a. The minor consented to the conduct that constituted the violation.
b. The minor was at least 13 years old but was less than 16 years old at the time of the violation.
c. The actor was not more than four years older than the minor. [MCL §28.722(u)(v)(A)(I)-(III)].
[OR]
II. All of the following:
a. The minor consented to the conduct that constituted the violation.
b. The minor was age 16 or 17 at the time of the violation.
c. The minor was not under the custodial authority of the actor at the time of the violation.
[MCL §28.722(u)(v)(B)(I)-(III)].
Under two specific circumstances, an actor may claim an exception to a violation of MCL §750.338 (gross indecency between males), MCL §750.338a (gross indecency between females), or MCL §750.338b (gross indecency between males and females) involving a minor who was at least age 13 but less than age 16 at the time of the violation. [See MCL §28.722(u)(vi)].
To successfully claim this exception, the actor must satisfy either of two conditions:
I. All of the following:
a. The minor consented to the conduct constituting the violation.
b. The minor was at least 13 years old but was less than 16 years old at the time of the violation.
c. The actor was not more than four years older than the victim.
[MCL §28.722(u)(vi)(A)(I)-(III)].
[OR]
II. All of the following:
a. The minor consented to the conduct constituting the violation.
b. The minor was age 16 or age 17 at the time of the violation.
c. The minor was not under the custodial authority of the actor at the time of the violation.
[MCL §28.722(u)(vi)(B)(I)-(III)].
Romeo & Juliet Exception for select tier III offenses:
Under specific circumstances, an actor may claim an exception to a violation of MCL §750.520b (CSC-I), MCL §750.520d (CSC-III), or MCL §750.520g(1) (assault with intent to commit criminal sexual conduct involving penetration) involving a minor who was at least 13-years-old but less than 16-years-old at the time of the violation. See MCL §28.722(w)(iv). To successfully claim this exception, the actor must satisfy all of the following conditions:
a. The minor consented to conduct constituting the offense.
b. The minor was at least age 13 but under age 16 at the time of the offense.
c. The actor was not more than four years older than the minor. MCL §28.722(w)(iv).
“The court’s decision excusing or requiring the individual to register is a final order of the court and may be appealed by the prosecuting attorney or the individual as a matter of right.”
MCL §28.723a(6).
DISCONTINUING/REMOVAL FROM REGISTRATION Under the Romeo & Juliet Provisions or for Juvenile Offenders Adjudicated for Offenses No Longer Requiring Registration:
WHO IS ELIGIBLE TO PETITION FOR REMOVAL?
A. Offenders who engaged in consensual sexual activity with a teenaged victim less than four years younger than them-also known as ROMEO & JULIET OFFENDERS. (see above)
B. Juvenile offenders under the age of 14 who were not tried as an adult
C. Juveniles in the 14 to 16 year old age group who were not tried as an adult and did not commit a TIER III offense
The Michigan Sex Offender Registration Act was amended by 2004 PA’s 237-240 to provide that offenders assigned to Holmes Youthful Trainee (HYTA) status after 10-1-04 are not required to register unless that status is revoked, and to provide a means of petitioning to reduce the registration period for individuals assigned to HYTA status before that date. The time period for the petition is limited: individuals convicted before 10-1-04 must petition within 3 years of discharge from HYTA status or before 10-1-07, whichever is earlier.
MCL §28.728c is the sole means by which an individual may obtain judicial review of his or her registration requirements under this act allowing a petitioner to file for “discontinuance” from registration under SORA. [§28.728c(4)]. This subsection does not prohibit an appeal of the conviction or sentence as otherwise provided by law or court rule. Id. Provisions of this section of the act apply to individuals (adult’s or juvenile’s) adjudicated and who plead guilty or were found to be guilty prior to or after July 1, 2011 (the effective date of the present act).
RE: CRIMINAL SEXUAL CONDUCT (CSC) OFFENSES:
The provisions of this section also apply to tier I, II or III CSC offenses, including MCL §750.520 b, 1st degree CSC or §750.520 g (1) Assault with intent to commit 1st degree CSC 1st degree; MCL §750.520c-CSC 2nd degree and MCL §750.520 d, 3rd degree CSC cases of the Michigan penal code, 1931 PA 328 that have been sentenced prior to or after the effective date of the act (ie 7/1/11):
A person classified as a tier I, tier II, or tier III offender who satisfies the requirements of MCL §28.728c(14) (Romeo & Juliet provisions for petitioners already registered) or MCL §28.728c(15) (petitioners adjudicated as juveniles for offenses no longer requiring registration) may petition the court for an order permitting him or her to discontinue registration under the SORA.
MCL §28.728c(3).
Romeo & Juliet provisions for registered offenders.
MCL §28.728c(14) requires the court to grant a properly filed petition if the court determines that the petitioner’s conviction of the listed offense resulted from a consensual sexual act between the petitioner and the victim UNDER ANY of the following circumstances:
I. All of the following:
a. The victim was 13 years of age or older but less than 16 years of age at the time of the offense.
b. The petitioner is not more than 4 years older than the victim.
[OR]
II. All of the following:
a. The individual was convicted of a violation of MCL §750.158, MCL §750.338, MCL §750.338a, or MCL §750.338b.
b. The victim was 13 years of age or older but less than 16 years of age at the time of the violation.
c. The individual is not more than 4 years older than the victim.
[OR]
III. All of the following:
a. The individual was convicted of a violation of MCL §750.158, MCL §750.338, MCL §750.338a, MCL §750.338b, or MCL §750.520c[(1)(i)].
b. The victim was 16 years of age or older at the time of the violation.
c. The victim was not under the custodial authority of the individual at the time of the violation.”
Juveniles adjudicated for offenses that no longer require registration.
MCL §28.728c(15) requires the court to grant a properly filed petition if the court determines that either of the following apply:
I. Both of the following:
a. The petitioner was adjudicated as a juvenile.
b. The petitioner was less than 14 years of age at the time of the offense.
c. The individual was registered under [the SORA] before July 1, 2011 for an offense that required registration but for which registration is not required on or after July 1, 2011.
If a Petition to Discontinue Registration is Granted
If a court grants a petition filed under MCL 28.728c, the court must promptly provide a copy of the order to the department of state police and to the petitioner. MCL 28.728d. In addition, the department of state police must promptly remove the petitioner’s registration from the computerized law enforcement database. Id.
MICHIGAN STATE POLICE (MSP) MANDATES FOLLOWING THE GRANT OF A PETITION:
Once the department of state police is notified and determines that an individual has completed his or her registration period, including a registration period reduced by law under the amendatory act that added this subsection, or that he or she otherwise is no longer required to register under this act, the department shall remove the individual’s registration information from both the law enforcement database and the public internet website within 7 days after making that determination.
REMOVALS DUE TO OFFENSES TAKEN OUT OF SORA
If an individual was registered under this act before July 1, 2011 for an offense that required registration but for which registration is no longer required on or after July 1, 2011, they can petition for removal from SORA. MCL §28.728c(15)(b). These offenses required three convictions to trigger registration. They are;
1. Disorderly Person/Indecent or Obscene Conduct; MCL §750.167(1)(f) and
2. Indecent Exposure; MCL §750.335a(2)(a)
If the prosecuting attorney disputes the petitioners allegation for an exemption (or discontinuance), the court shall conduct a hearing on the matter before sentencing or disposition to determine whether the individual is required to register under this act. The petitioner has the burden of proving by a preponderance of the evidence in a hearing that his or her conduct falls within the exceptions.
SUNSET EXPIRATION PROVISIONS:
Additionally the act generally sets out expiration dates for registration for tier I and III listed offender categories. For a Tier I offender [1] a court would grant a petition, if the following conditions were met:
1) At least 10 years had elapsed since the date of the individual’s conviction or from his or her release from any period of confinement for the offense, whichever occurred later.
2) The individual had not been convicted of any felony or any listed offense since that date.
3) The individual successfully completed his or her assigned periods of supervised release, probation, or parole without revocation.
4) The individual successfully completed an appropriate sex offender treatment program.The court may waive the treatment program requirements if successfully completing a sex offender treatment program was not a condition of the petitioner’s confinement, release, probation, or parole.
A Tier III [2] offender could petition for discontinuing registration, and a court could grant the petition, if all of the following applied:
1) The individual was required to register based on an order of disposition entered under the juvenile code that was open to the general public.
2) At least 25 years had elapsed since the date of adjudication or release, whichever was later.
3) The individual met the other criteria applicable to a Tier I offender.
The court shall consider all of the following in determining whether to allow the individual to
discontinue registration under these subsections [(12) or (13)] but shall not grant the petition if the court determines that the individual is a continuing threat to the public:
(a) The individual’s age and level of maturity at the time of the offense.
(b) The victim’s age and level of maturity at the time of the offense.
(c) The nature of the offense.
(d) The severity of the offense.
(e) The individual’s prior juvenile or criminal history.
(f) The individual’s likelihood to commit further listed offenses.
(g) Any impact statement submitted by the victim under the William Van Regenmorter crime victim’s rights act, 1985 PA 87, MCL §§780.751 to 780.834, or under this section [and],
(h) Any other information considered relevant by the court.
Adult Expungements remain convictions for SORA;
Convictions that are set aside, pursuant to MCL §780.621 known also as expunged, remain a conviction for SORA purposes. [MCL §28.722(b)(1)]. Individuals who had adult convictions set aside will remain on SOR. One minor concession is the public registry will list that the conviction has been expunged if the offender forwards the set aside paperwork to MSP.
MCL §28.728(10).
Juvenile Expungements are not “convictions” for purposes of SORA:
This section is generally only relevant to juveniles aged 14-16 with tier III offenses since all other juveniles under age of 14 will be removed from registry and are excluded from the definition of “convicted” for SORA purposes and are not required to register. [MCL §28.722(b)(iii)]. Juveniles in the 14 to 16 year old age group do not have to register as sex offenders if their offense does not fall into a tier III category. MCL §28.722(b)(iii). However, experience has taught there will be cases were upper middle junior high and lower high school juveniles between the ages of 14-16 engage in sexual contact with younger 10-12 year olds. There will only be a 2 to 4 year age difference between the parties and Criminal Sexual Conduct with victim under 13 in those cases is 2d Degree and classified as a tier III offense. Adjudication for this offense will lead to lifetime non-public registration. In order to qualify for removal, the juvenile’s case cannot have been a designated case (juvenile waived to adult circuit court). Although not changed from previous law, many registrants (and defense attorneys) failed to realize that a individual who previously had a juvenile adjudication set aside was not required to register as a sex offender. A juvenile set aside is not considered to be a “conviction” and excluded for purposes of SORA. By definition in § 28.722 (b)(i) “convicted . . . include[s] a conviction subsequently set aside under 1965 PA 213, MCL §§780.621 to 780.624.” There is no reference to juvenile set aside law, thus, juveniles who get their adjudications set aside do not have to register.
Criminal Penalties for Non-compliance with SORA.
NOTE: Effective April 1, 2014, the Sex Offenders Registration Act, Public Act 149 of 2013; MCL 28.725a, a/k/a Section 5a, amended the verification and annual registration fee requirements
The Act prescribes penalties for a violation of Section 5a at MCL 28.729 (which contains the annual and quarterly reporting requirements; requires a person to pay a registration fee upon reporting if he or she has not already paid one; and requires an individual to report to the Secretary of State to have a digitized photograph taken). An individual who fails to comply with section 5a, ie payment of the fee required under section 5a(6), is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. Other than failure to pay the fee which is a misdemeanor, an individual required to be registered under this act who willfully violates this act is guilty of a felony punishable as follows:punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both for someone with no prior convictions; by imprisonment for not more than 7 years or a fine of not more than $5,000.00, or both for someone with one prior conviction; by imprisonment for not more than 10 years or a fine of not more than $10,000.00, or both for someone with two or more prior convictions. Under the bill, regardless of the number of convictions, failure to comply with Section 5a, other than payment of the fee, would be a misdemeanor punishable by imprisonment for up to two years and/or a maximum fine of $2,000.
The Act further amends the Code of Criminal Procedure to revise the sentencing guidelines designation for failure to update sex offender registration information. Currently, a third or subsequent offense is a Class F public order felony, with a statutory maximum sentence of four years’ imprisonment. The new law deleted this reference.
[1] As defined in §28.722 (r) as amended with respect to a CSC related offense a “Tier I offender” means an individual convicted of a tier I offense who is not a tier II or tier III offender. Sub (s) states in pertinent part a “Tier I offense” means 1 or more of the following:
(iv) A violation of §750.520e, criminal sexual conduct in the 4th degree; misdemeanor or §750.520g(2), assault with intent to commit criminal sexual conduct in the 2nd degree, MCL §750.520e and MCL §750.520g, if the victim is 18 years or older. (emphasis added)
Under Sub (t) a “Tier II offender” with respect to a CSC related offense means either of the following:
(i) A tier I offender who is subsequently convicted of another offense that is a tier I offense.
(ii) An individual convicted of a tier II offense who is not a tier III offender.
(u) “Tier II offense” means 1 or more of the following:
(ix) A violation of MCL §750.520c, criminal sexual conduct in the 2nd degree; MCL §750.520e, or MCL §750.520g(2) of the Michigan penal code, committed against an individual 13 years of age or older but less than 18 years of age. (emphasis added)
(x) A violation of MCL §750.520c committed against an individual 18 years of age or older. (emphasis added)
(xi) An attempt or conspiracy to commit an offense described in subparagraphs (i) to (x).
[2] As defined in §28.722 (v)as amended with respect to a CSC related offense a “Tier III offender” means either of the following:
(i) A tier II offender subsequently convicted of a tier I or II offense.
(ii) An individual convicted of a tier III offense.
A “Tier III offense” means 1 or more of the following:
(iv) A violation of section MCL §750.520b, criminal sexual conduct in the 1st degree; MCL §750.520d, criminal sexual conduct in the 3rd degree or MCL §750 520g(1), assault with intent to commit criminal sexual conduct involving sexual penetration of the Michigan penal code, 1931 PA 328, and 750.520g, assault with intent to commit criminal sexual conduct. This sub-paragraph does not apply if the court determines that the victim consented to the conduct constituting the violation, that the victim was at least 13 years of age but less than 16 years of age at the time of the offense, and that the individual is not more than 4 years older than the victim.
(v) A violation of §520c or §520g(2) of the Michigan penal code, 1931 PA 328, MCL §750.520c and §750.520g, committed against an individual less than 13 years of age
(vi) A violation of section 520e of the Michigan penal code, 1931 PA 328, MCL §750.520e, committed by an individual 17 years of age or older against an individual less than 13 years of age.
(vii) An attempt or conspiracy to commit an offense described in subparagraphs (i) to (vi).
Law Office of Paul R. Jones P.L.C. 