On April 12, 2011, Governor Snyder signed a bill making sweeping changes to Michigan’s Sex Offender Registration Act (Public Acts 17, 18, and 19 of 2011). An initial review of the changes show that while many of the proponents are congratulating themselves for finally bringing sanity to a law in much need of it, a closer read shows that the truth is not all the changes are as positive as they purport to be.

As discussed on the blog several weeks ago, Michigan’s Sex Offender Registration Act, MCLA 28.721 et. seq., was a “one tier” system. This means that before the changes in the law, anyone convicted of a “listed” sex offense in Michigan was put on the same registry. The act makes no distinctions between dangerous child predators convicted of molesting young children, and teenagers accused “statutory rape” (MCLA 750.520d(1)(a)) for having sex with their underage boyfriend or girlfriend (so called “Romeo and Juliet” offenders). If you are convicted of a listed offense, you are on the registry – the same registry for all.

The bill signed into law by Governor Snyder changes all of that.  Michigan is now a “Three tier” registration state, bringing the state into compliance with the Federal Adam Walsh Act requirements (Pub. L. 109-248, 120 Stat. 587).

First tier offenders would be those convicted of lesser sex offenses such as indecent exposure, certain simple possession of child pornography crimes, and most 4th degree criminal sexual conduct convictions. They would not be listed on the public registry at all; rather they would register with the State Police once per year for 15 years, and their names and information would be on a private list, available only to law enforcement. Some first tier offenders would be able to petition a judge to have their name removed after 10 years.

Second tier offenders would be for those convicted of offenses such as date rape, 2nd (MCLA 750.520c) and 3rd (MCLA 750.520d) degree criminal sexual conduct offenses against adults, and most internet and child pornography offenses.  Second tier offenders would have to register twice per year with the State Police, and would be on the registry for 25 years.

The most serious offenders would be on the Third Tier, which would be reserved for those persons convicted of crimes such as 1st degree criminal sexual conduct (MCLA 750.520b), and any conviction for sexually molesting a child under the age of 13.  This requirement applies even to juveniles convicted of these offenses.  Tier Three offenders would be forced to register four times per year, and would be on the registry for life.

The good news is that all juveniles aged 13 and under at time of offense will be removed from the registry no matter the offense.  Juveniles aged 14-16 at time of offense convicted of either Tier I or Tier II offenses will also removed from the registry.

The issue of Romeo and Juliet offenders is more complex – some will be removed, while others will not. Going forward, anyone convicted of a Romeo and Juliet offense and sentenced under Michigan’s Holmes Youthful Trainee Act, MCLA 762.11 et.seq, (commonly known as “HYTA”) will not be put on the registry.  For offenders that are not sentenced under HYTA, in order to avoid the registry they would need either a stipulation by the Prosecutor, or prove they should not be required to register at a hearing.  The burden of proof at this hearing is on the offender, and the rules of evidence do not apply.  The offender must prove that the victim consented by a preponderance of the evidence, along with the victim’s age (13 to 15 years old) and no more than four year age difference between the victim and the offender.  Most troubling, while the rules of evidence do not apply at this hearing, the new law states that rape shield prevents the offender from using the victim’s sexual history to establish consent.

While this is a good first start, many of the provisions, particularly those related to the Romeo and Juliet offender hearings, will need to played out in courtrooms throughout the state before the full impact of these changes is understood.

Mark A. Satawa practices in the area of criminal defense, specializing in sex crimes. He is a member of the board of directors of the National Association of Criminal Defense Lawyers (www.NACDL.org), and is a frequent continuing legal education speaker on sex offenses, most recently at the Institute for Continuing Legal Education seminar on Proven Defense Strategies for Challenging Criminal Sexual Conduct Cases.