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The National Guidelines for Sex Offender Registration and Notification;
Notice
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DEPARTMENT OF JUSTICE
[Docket No. OAG 121; A.G. Order No. 2880-2007].
RIN 1105-AB28
Office of the Attorney General; The National Guidelines for Sex
Offender Registration and Notification
AGENCY: Department of Justice.
ACTION: Notice; Proposed guidelines.
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SUMMARY: The United States Department of Justice is publishing Proposed
Guidelines to interpret and implement the Sex Offender Registration and
Notification Act.
DATES: Comments must be received by August 1, 2007.
ADDRESSES: Comments may be mailed to Laura L. Rogers, Director, SMART
Office, Office of Justice Programs, United States Department of
Justice, 810 7th Street NW., Washington, DC 20531. To ensure proper
handling, please reference OAG Docket No. 121 on your correspondence.
You may view an electronic version of these proposed guidelines at
http://www.ojp.gov/smart or http://www.regulations.gov. You may also
comment via the Internet to the Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking (SMART Office) of
the Justice Department's Office of Justice Programs at
getsmart@usdoj.gov. Electronically submitted comments must include
Docket No. OAG 121 in the subject box.
FOR FURTHER INFORMATION CONTACT: Laura L. Rogers, Director, SMART
Office, Office of Justice Programs, United States Department of
Justice, Washington, DC 202-514-4689.
SUPPLEMENTARY INFORMATION: Since the enactment of the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender Registration Act
(42 U.S.C. 14071) in 1994, there have been national standards for sex
offender registration and notification in the United States. All states
currently have sex offender registration and notification programs and
have endeavored to implement the Wetterling Act standards in their
existing programs.
Title I of the Adam Walsh Child Protection and Safety Act of 2006
(Pub. L. 109-248), the Sex Offender Registration and Notification Act
(SORNA), contains a comprehensive revision of the national standards
for sex offender registration and notification. The SORNA reforms are
generally designed to strengthen and increase the effectiveness of sex
offender registration and notification for the protection of the
public, and to eliminate potential gaps and loopholes under the pre-
existing standards by means of which sex offenders could attempt to
evade registration requirements or the consequences of registration
violations.
These proposed guidelines carry out a statutory directive to the
Attorney General in section 112(b) of SORNA (42 U.S.C. 16912(b)) to
issue guidelines to interpret and implement SORNA. They provide
guidance and assistance to the states and other jurisdictions in
incorporating the SORNA requirements into their sex offender
registration and notification programs. Matters addressed in the
guidelines include general principles for SORNA implementation; the
jurisdictions responsible for implementing the SORNA standards in their
programs; the sex offenders required to register under SORNA and the
registration and notification requirements they are subject to based on
the nature of their offenses and the extent of their recidivism; the
information to be included in the sex offender registries and the
disclosure and sharing of such information; the jurisdictions in which
sex offenders are required to register; the procedures for initially
registering sex offenders and for keeping the registration current and
the registration information up to date; the duration of registration;
and the means of enforcing registration requirements.
Proposed National Guidelines for Sex Offender Registration and
Notification
Contents
I. Introduction
II. General Principles
A. Terminology
B. Minimum National Standards
C. Retroactivity
D. Automation--Electronic Databases and Software
E. Implementation
III. Covered Jurisdictions
IV. Covered Sex Offenses and Sex Offenders
A. Convictions Generally
B. Foreign Convictions
C. Sex Offenses Generally
D. Specified Offenses Against Minors
E. Protected Witnesses
V. Classes of Sex Offenders
VI. Required Registration Information
VII. Disclosure and Sharing of Information
A. Sex Offender Web Sites
B. Community Notification and Targeted Disclosures
VIII. Where Registration Is Required
IX. Initial Registration
X. Keeping the Registration Current
A. Changes of Name, Residence, Employment, or School Attendance
B. Changes in Other Registration Information
C. International Travel
XI. Verification/Appearance Requirements
XII. Duration of Registration
XIII. Enforcement of Registration Requirements
I. Introduction
The Sex Offender Registration and Notification Act (``SORNA'' or
``the Act''), which is title I of the Adam Walsh Child Protection and
Safety Act of 2006 (Pub. L. 109-248), provides a new comprehensive set
of minimum standards for sex offender registration and notification in
the United States. These guidelines are issued to provide guidance and
assistance to covered jurisdictions--the 50 States, the District of
Columbia, the principal U.S. territories, and Indian tribal
governments--in implementing the SORNA standards in their registration
and notification programs.
The adoption of these guidelines carries out a statutory directive
to the Attorney General, appearing in SORNA section 112(b), to issue
guidelines to interpret and implement SORNA. Other provisions of SORNA
establish the Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (the ``SMART Office''), a
component of the Office of Justice Programs of the U.S. Department of
Justice. The SMART Office is authorized by law to administer the
standards for sex offender registration and notification that are set
forth in SORNA and interpreted and implemented in these guidelines. It
is further authorized to cooperate with and provide assistance to
States, local governments, tribal governments, and other public and
private entities in relation to sex offender registration and
notification and other measures for the protection of the public from
sexual abuse or exploitation. See SORNA section 146(c). Accordingly,
the SMART Office should be regarded by jurisdictions discharging
registration and notification functions as their key partner and
resource in the federal government in further developing and
strengthening their sex offender registration and notification
programs, and the SMART Office will provide all possible assistance for
this purpose.
The development of sex offender registration and notification
programs in the United States has proceeded rapidly since the early
1990s, and at the present time such programs exist in all of the
States, the District of Columbia, and some of the territories and
tribes. These programs serve a number of important public safety
purposes. In their most basic character, the registration aspects of
these programs are systems for
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tracking sex offenders following their release into the community. If a
sexually violent crime occurs or a child is molested, information
available to law enforcement through the registration program about sex
offenders who may have been present in the area may help to identify
the perpetrator and solve the crime. If a particular released sex
offender is implicated in such a crime, knowledge of the sex offender's
whereabouts through the registration system may help law enforcement in
making a prompt apprehension. The registration program may also have
salutary effects in relation to the likelihood of registrants
committing more sex offenses. Registered sex offenders will perceive
that the authorities' knowledge of their identities, locations, and
past offenses reduces the chances that they can avoid detection and
apprehension if they reoffend, and this perception may help to
discourage them from doing so.
Registration also provides the informational base for the other key
aspect of the programs--notification--which involves making information
about released sex offenders more broadly available to the public. The
means of public notification currently include sex offender Web sites
in all States, the District of Columbia, and some territories, and may
involve other forms of notice as well. The availability of such
information helps members of the public to take common sense measures
for the protection of themselves and their families, such as declining
the offer of a convicted child molester to watch their children or head
a youth group, or reporting to the authorities approaches to children
or other suspicious activities by such a sex offender. Here as well,
the effect is salutary in relation to the sex offenders themselves,
since knowledge by those around them of their sex offense histories
reduces the likelihood that they will be presented with opportunities
to reoffend.
While sex offender registration and notification in the United
States are generally carried out through programs operated by the
individual States and other non-federal jurisdictions, their
effectiveness depends on also having effective arrangements for
tracking of registrants as they move among jurisdictions and some
national baseline of registration and notification standards. In a
federal union like the United States with a mobile population, sex
offender registration could not be effective if registered sex
offenders could simply disappear from the purview of the registration
authorities by moving from one jurisdiction to another, or if
registration and notification requirements could be evaded by moving
from a jurisdiction with an effective program to a nearby jurisdiction
that required little or nothing in terms of registration and
notification.
Hence, there have been national standards for sex offender
registration in the United States since the enactment of the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender Act
(42 U.S.C. 14071) in 1994. The national standards from their inception
have addressed such matters as the offenses for which registration
should be required, updating and periodic verification of registration
information, the duration of registration, public notification, and
continued registration and tracking of sex offenders when they relocate
from one jurisdiction to another.
Following the enactment of the Wetterling Act in 1994, that Act was
amended a number of times, in part reflecting and in part promoting
trends in the development of the State registration and notification
programs. Ultimately, Congress concluded that the patchwork of
standards that had resulted from piecemeal amendments should be
replaced with a comprehensive new set of standards--the SORNA reforms,
whose implementation these Guidelines concern--that would close
potential gaps and loopholes under the old law, and generally
strengthen the nationwide network of sex offender registration and
notification programs. Important areas of reform under the SORNA
standards include:
Extending the jurisdictions in which registration is
required beyond the 50 States, the District of Columbia, and the
principal U.S. territories, to include Indian tribal jurisdictions.
Extending the classes of sex offenders and sex offenses
for which registration is required.
Consistently requiring that sex offenders in the covered
classes register and keep the registration current in the jurisdictions
in which they reside, work, or go to school.
Requiring more extensive registration information.
Adding to the national standards periodic in-person
appearances by registrants to verify and update the registration
information.
Broadening the availability of information concerning
registered sex offenders to the public, through posting on sex offender
Web sites and by other means.
Adopting reforms affecting the required duration of
registration.
In addition, SORNA strengthens the federal superstructure elements
that leverage and support the sex offender registration and
notification programs of the registration jurisdictions. These
strengthened elements are: (i) Stepped-up federal investigation and
prosecution efforts to assist jurisdictions in enforcing sex offender
registration requirements; (ii) new statutory provisions for the
national database and national Web site (i.e., the National Sex
Offender Registry and the Dru Sjodin National Sex Offender Public Web
site) that effectively compile information obtained under the
registration programs of the States and other jurisdictions and make it
readily available to law enforcement or the public on a nationwide
basis; (iii) development by the federal government of software tools,
which the States and other registration jurisdictions will be able to
use to facilitate the operation of their registration and notification
programs in conformity with the SORNA standards; and (iv) establishment
of the SMART Office to administer the national standards for sex
offender registration and notification and to assist registration
jurisdictions in their implementation.
Through the cooperative effort of the 50 States, the District of
Columbia, the U.S. territories, and Indian tribal governments with the
responsible federal agencies, the SORNA goal of an effective and
comprehensive national system of registration and notification programs
can be realized, with great benefit to the ultimate objective of
``protect[ing] the public from sex offenders and offenders against
children.'' SORNA section102. These Guidelines provide the blueprint
for that effort.
Alberto R. Gonzales, Attorney General
II. General Principles
Before turning to the specific SORNA standards and requirements
discussed in the remainder of these Guidelines, certain general points
should be noted concerning the interpretation and application of the
Act and these Guidelines:
A. Terminology
These Guidelines use key terms with the meanings defined in SORNA.
In particular, the term ``jurisdiction'' is consistently used with the
meaning set forth in SORNA section 111(10). As defined in that
provision, it refers to the 50 States, the District of Columbia, the
five principal U.S. territories--i.e., the Commonwealth of Puerto Rico,
Guam, American Samoa, the Northern Mariana
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Islands, and the United States Virgin Islands--and Indian tribes that
elect to function as registration jurisdictions under SORNA section
127. (For more concerning covered jurisdictions, see Part III of these
Guidelines.) Thus, when these Guidelines refer to ``jurisdictions''
implementing the SORNA registration and notification requirements, the
reference is to implementation of these requirements by the
jurisdictions specified in SORNA section 111(10). Likewise, the term
``sex offense'' is not used to refer to any and all crimes of a sexual
nature, but rather to those covered by the definition of ``sex
offense'' appearing in SORNA section 111(5), and the term ``sex
offender'' has the meaning stated in SORNA section 111(1). (For more
concerning covered sex offenses and offenders, see Part IV of these
Guidelines.)
SORNA itself includes a number of references relating to
implementation by jurisdictions of the requirements of ``this title.''
Section 125 provides a mandatory 10% reduction in certain federal
justice assistance funding for jurisdictions that fail, as determined
by the Attorney General, to substantially implement ``this title''
within the time frame specified in section 124, and section 126
authorizes a Sex Offender Management Assistance grant program to help
offset the costs of implementing ``this title.'' In the context of
these provisions, the references to ``this title'' function as a
shorthand for the SORNA sex offender registration and notification
standards. They do not mean that funding under these provisions is
affected by a jurisdiction's implementation or non-implementation of
reforms unrelated to sex offender registration and notification that
appear in later portions of title I of the Adam Walsh Act Child
Protection and Safety Act of 2006 (particularly, subtitle C of that
title).
Section 125(d) of SORNA states that the provisions of SORNA ``that
are cast as directions to jurisdictions or their officials constitute,
in relation to States, only conditions required to avoid the reduction
of Federal funding under this section.'' Statements in these Guidelines
that SORNA requires jurisdictions to adopt certain measures should be
understood accordingly in their application to the States. Since the
SORNA requirements relating to sex offender registration and
notification are, in relation to the States, only partial funding
eligibility conditions, creation of these requirements is within the
constitutional authority of the federal government.
B. Minimum National Standards
SORNA establishes a national baseline for sex offender registration
and notification programs. In other words, the Act generally
constitutes a set of minimum national standards and sets a floor, not a
ceiling, for jurisdictions' programs. Hence, for example, a
jurisdiction may have a system that requires registration by broader
classes of convicted sex offenders than those identified in SORNA, or
that requires, in addition, registration by certain classes of non-
convicts (such as persons acquitted on the ground of insanity of
sexually violent crimes or child molestation offenses, or persons
released following civil commitment as sexually dangerous persons). A
jurisdiction may require verification of the registered address or
other registration information by sex offenders with greater frequency
than SORNA requires, or by other means in addition to those required by
SORNA (e.g., through the use of mailed address verification forms, in
addition to in-person appearances). A jurisdiction may require sex
offenders to register for longer periods than those required by the
SORNA standards. A jurisdiction may require that changes in
registration information be reported by registrants on a more stringent
basis than the SORNA minimum standards--e.g., requiring that changes of
residence be reported before the sex offender moves, rather than within
three business days following the move. A jurisdiction may extend Web
site posting to broader classes of registrants than SORNA requires and
may post more information concerning registrants than SORNA and these
Guidelines require.
Such measures, which encompass the SORNA baseline of sex offender
registration and notification requirements but go beyond them,
generally have no negative implication concerning jurisdictions'
implementation of or compliance with SORNA. This is so because the
general purpose of SORNA is to protect the public from sex offenders
and offenders against children through effective sex offender
registration and notification, and it is not intended to preclude or
limit jurisdictions' discretion to adopt more extensive or additional
registration and notification requirements to that end. There are
exceptions to this general rule, however. For example, SORNA section
118(b) requires that certain limited types of information, such as
victim identity and registrants' Social Security numbers, be excluded
from jurisdictions' publicly accessible sex offender Web sites, as
discussed in Part VII of these Guidelines. In most other respects,
jurisdictions' discretion to go further than the SORNA minimum is not
limited.
C. Retroactivity
The applicability of the SORNA requirements is not limited to sex
offenders whose predicate sex offense convictions occur following a
jurisdiction's implementation of a conforming registration program.
Rather, SORNA's requirements apply to all sex offenders, including
those whose convictions predate the enactment of the Act. The Attorney
General has so provided in 28 CFR part 72, pursuant to the authority
under SORNA section 113(d) to ``specify the applicability of the
requirements of [SORNA] to sex offenders convicted before the enactment
of this Act or its implementation in a particular jurisdiction.'' As
noted in the rulemaking document for the cited regulations, the
application of the SORNA standards to sex offenders whose convictions
predate SORNA creates no ex post facto problem ``because the SORNA sex
offender registration and notification requirements are intended to be
non-punitive, regulatory measures adopted for public safety purposes,
and hence may validly be applied (and enforced by criminal sanctions)
against sex offenders whose predicate convictions occurred prior to the
creation of these requirements. See Smith v. Doe, 538 U.S. 84 (2003).''
72 FR 8894, 8896 (Feb. 28, 2007).
As a practical matter, jurisdictions may not be able to identify
all sex offenders who fall within the SORNA registration categories,
where the predicate convictions predate the enactment of SORNA or the
jurisdiction's implementation of the SORNA standards in its
registration program, particularly where such sex offenders have left
the justice system and merged into the general population long ago. But
many sex offenders with such convictions will remain in (or reenter)
the system because:
They are incarcerated or under supervision, either for the
predicate sex offense or for some other crime;
They are already registered or subject to a pre-existing
sex offender registration requirement under the jurisdiction's law; or
They hereafter reenter the jurisdiction's justice system
because of conviction for some other crime (whether or not a sex
offense).
Sex offenders in these three classes are within the cognizance of the
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jurisdiction, and the jurisdiction will often have independent reasons
to review their criminal histories for penal, correctional, or
registration/notification purposes. Accordingly, a jurisdiction will be
deemed to have substantially implemented the SORNA standards with
respect to sex offenders whose predicate convictions predate the
enactment of SORNA or the implementation of SORNA in the jurisdiction's
program if it registers these sex offenders, when they fall within any
of the three classes described above, in conformity with the SORNA
standards. (For more about the registration of sex offenders in these
classes, see the discussion under ``retroactive classes'' in Part IX of
these Guidelines.)
The required retroactive application of the SORNA requirements will
also be limited in some cases by the limits on the required duration of
registration. As discussed in Part XII of these Guidelines, SORNA
requires minimum registration periods of varying length for sex
offenders in different categories, defined by criteria relating to the
nature of their sex offenses and their history of recidivism. This
means that a sex offender with a pre-SORNA conviction may have been in
the community for a greater amount of time than the registration period
required by SORNA. For example, SORNA section 115 requires registration
for 25 years for a sex offender whose offense satisfies the ``tier II''
criteria of section 111(3). A sex offender who was released from
imprisonment for such an offense in 1980 is already more than 25 years
out from the time of release. In such cases, a jurisdiction may credit
the sex offender with the time elapsed from his or her release (or the
time elapsed from sentencing, in case of a non-incarcerative sentence),
and does not have to require the sex offender to register on the basis
of the conviction, even if the criteria for retroactive application of
the SORNA standards under this Part are otherwise satisfied.
As with other requirements under SORNA and these Guidelines, the
foregoing discussion identifies only the minimum required for SORNA
compliance. Jurisdictions are free to require registration for broader
classes of sex offenders with convictions that predate SORNA or the
jurisdiction's implementation of the SORNA standards in its program.
D. Automation--Electronic Databases and Software
Several features of SORNA contemplate, or will require as a
practical matter, the use of current electronic and cyber technology to
track seamlessly sex offenders who move from one jurisdiction to
another, ensure that information concerning registrants is immediately
made available to all interested jurisdictions, and make information
concerning sex offenders immediately available to the public as
appropriate. These include provisions for immediate information sharing
among jurisdictions under SORNA section 113(c); a requirement in
section 119(b) that the Attorney General ensure ``that updated
information about a sex offender is immediately transmitted by
electronic forwarding to all relevant jurisdictions''; and requirements
in section 121(b) that sex offender registration information and
updates thereto be provided immediately to various public and private
entities and individuals. (For more about these information sharing
requirements and associated time frames, see Parts VII.B and X of these
Guidelines.)
Carrying out the SORNA information sharing requirements accordingly
will entail maintenance by jurisdictions of their registries in the
form of electronic databases, whose included information can be
electronically transmitted to other jurisdictions and entities. This
point is further discussed in connection with the specific SORNA
standards, particularly in Parts VI, VII, and X of these Guidelines.
Section 123 of SORNA directs the Attorney General, in consultation
with the jurisdictions, to develop and support registry management and
Web site software. The purposes of the software include facilitating
the immediate exchange of sex offender information among jurisdictions,
public access through the Internet to sex offender information and
other forms of community notification, and compliance in other respects
with the SORNA requirements. As required by section 123, the Department
of Justice will develop and make available to the jurisdictions
software tools for the operation of their sex offender registration and
notification programs, which will, as far as possible, be designed to
automate these processes and enable the jurisdictions to implement
SORNA's requirements by utilizing the software.
E. Implementation
Section 124 of SORNA sets a general time frame of three years for
implementation, running from the date of enactment of SORNA, i.e., from
July 27, 2006. The Attorney General is authorized to provide up to two
one-year extensions of this deadline. Failure to comply within the
applicable time frame would result in a 10% reduction of Federal
justice assistance funding under 42 U.S.C. 3750 et seq. (``Byrne
Justice Assistance Grant'' funding). See SORNA section 125(a). Funding
withheld from jurisdictions because of noncompliance would be
reallocated to other jurisdictions that are in compliance, or could be
reallocated to the noncompliant jurisdiction to be used solely for the
purpose of SORNA implementation.
While SORNA sets minimum standards for jurisdictions' registration
and notification programs, it does not require that its standards be
implemented by statute. Hence, in assessing compliance with SORNA, the
totality of a jurisdiction's rules governing the operation of its
registration and notification program will be considered, including
administrative policies and procedures as well as statutes.
The SMART Office will be responsible for determining whether a
jurisdiction has substantially implemented the SORNA requirements. The
affected jurisdictions are encouraged to submit information to the
SMART Office concerning existing and proposed sex offender registration
and notification provisions with as much lead time as possible, so the
SMART Office can assess the adequacy of existing or proposed measures
to implement the SORNA requirements and work with the submitting
jurisdictions to overcome any shortfalls or problems. At the latest,
submissions establishing compliance with the SORNA requirements should
be made to the SMART Office at least three months before the deadline
date of July 27, 2009--i.e., by April 27, 2009--so that the matter can
be determined before the Byrne Grant funding reduction required by
SORNA section 125 for noncompliant jurisdictions takes effect. If it is
anticipated that a submitting jurisdiction may need an extension of
time as described in SORNA section 124(b), the submission to the SMART
Office--which should be made by April 27, 2009, as noted--should
include a description of the jurisdiction's implementation efforts and
an explanation why an extension is needed.
SORNA section 125 refers to ``substantial'' implementation of
SORNA. The standard of ``substantial implementation'' is satisfied with
respect to an element of the SORNA requirements if a jurisdiction
carries out the requirements of SORNA as interpreted and explained in
these Guidelines. Hence, the standard is satisfied if a jurisdiction
implements
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measures that these Guidelines identify as sufficient to implement (or
``substantially'' implement) the SORNA requirements.
The ``substantial'' compliance standard also contemplates that
there is some latitude to approve a jurisdiction's implementation
efforts, even if they do not exactly follow in all respects the
specifications of SORNA or these Guidelines. For example, section 116
of SORNA requires periodic in-person appearances by sex offenders to
verify their registration information. In some cases this will be
impossible, such as the case of a sex offender who is hospitalized and
unconscious as a result of an injury at the time of a scheduled
appearance. In other cases, the appearance may not be literally
impossible, but there may be reasons to allow some relaxation of the
requirement. For example, a sex offender may unexpectedly need to deal
with a family emergency at the time of a scheduled appearance, where
failure to make the appearance will mean not verifying the registration
information within the exact time frame specified by SORNA section 116.
A jurisdiction may wish to authorize rescheduling of the appearance in
such cases. Doing so would not necessarily undermine substantially the
objectives of the SORNA verification requirements, so long as the
jurisdiction's rules or procedures require that the sex offender notify
the official responsible for monitoring the sex offender of the
difficulty, and that the appearance promptly be carried out once the
interfering circumstance is resolved.
In general, the SMART Office will consider on a case-by-case basis
whether jurisdictions' rules or procedures that do not exactly follow
the provisions of SORNA or these Guidelines ``substantially'' implement
SORNA, assessing whether the departure from a SORNA requirement will or
will not substantially disserve the objectives of the requirement. If a
jurisdiction is relying on the authorization to approve measures that
``substantially'' implement SORNA as the basis for an element or
elements in its system that depart in some respect from the exact
requirements of SORNA or these Guidelines, the jurisdiction's
submission to the SMART Office should identify these elements and
explain why the departure from the SORNA requirements should not be
considered a failure to substantially implement SORNA.
Beyond the general standard of substantial implementation, SORNA
section 125(b) includes special provisions for cases in which the
highest court of a jurisdiction has held that the jurisdiction's
constitution is in some respect in conflict with the SORNA
requirements. If a jurisdiction believes that it faces such a
situation, it should inform the SMART Office. The SMART Office will
then work with the jurisdiction to see whether the problem can be
overcome, as the statute provides. If it is not possible to overcome
the problem, then the SMART Office may approve the jurisdiction's
adoption of reasonable alternative measures that are consistent with
the purposes of SORNA.
Section 125 of SORNA, as discussed above, provides for a funding
reduction for jurisdictions that do not substantially implement SORNA
within the applicable time frame. Section 126 of SORNA authorizes
positive funding assistance--the Sex Offender Management Assistance
(``SOMA'') grant program--to all registration jurisdictions to help
offset the costs of SORNA implementation, with enhanced payments
authorized for jurisdictions that effect such implementation within one
or two years of SORNA's enactment. Congress has not appropriated
funding for the SOMA program at the time of the issuance of these
Guidelines. If funding for this program is forthcoming in the future,
additional guidance will be provided concerning application for grants
under the program.
III. Covered Jurisdictions
Section 112(a) of SORNA states that ``[e]ach jurisdiction shall
maintain a jurisdiction-wide sex offender registry conforming to the
requirements of this title,'' and section 124 provides specific
deadlines for ``jurisdictions'' to carry out the SORNA implementation.
Related definitions appear in section 111(9) and (10). Section 111(9)
provides that ``sex offender registry'' means a registry of sex
offenders and a notification program.
Section 111(10) provides that ``jurisdiction'' refers to:
The 50 States;
The District of Columbia;
The five principal U.S. territories--the Commonwealth of
Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and
the United States Virgin Islands; and
Indian tribes to the extent provided in section 127.
Some of the provisions in SORNA are formulated as directions to sex
offenders, including those appearing in sections 113(a)-(b), 113(c)
(first sentence), 114(a), 115(a), and 116. Other SORNA provisions are
cast as directions to jurisdictions or their officials, such as those
appearing in sections 113(c) (second sentence), 113(e), 114(b), 117(a),
118, 121(b), and 122. To meet the requirement under sections 112 and
124 that covered jurisdictions must implement SORNA in their
registration and notification programs, each jurisdiction must
incorporate in the laws and rules governing its registration and
notification program the requirements that SORNA imposes on sex
offenders, as well as those that are addressed directly to
jurisdictions and their officials.
While the ``jurisdictions'' assigned sex offender registration and
notification responsibilities by SORNA are the 50 States, the District
of Columbia, the principal territories, and Indian tribes (to the
extent provided in section 127), as described above, this does not
limit the ability of these jurisdictions to carry out these functions
through their political subdivisions. For example, a jurisdiction may
assign responsibility for initially registering sex offenders upon
their release from imprisonment to correctional personnel who are
employees of the jurisdiction's government, but the responsibility for
continued tracking and registration of sex offenders thereafter may be
assigned to personnel of local police departments, sheriffs' offices,
or supervision agencies who are municipal employees. Moreover, in
carrying out their registration and notification functions,
jurisdictions are free to utilize (and to allow their agencies and
political subdivisions to utilize) entities and individuals who may not
be governmental agencies or employees in a narrow sense, such as
contractors, volunteers, and community-based organizations that are
capable of discharging these functions. SORNA does not limit
jurisdictions' discretion concerning such matters. Rather, so long as a
jurisdiction's laws and rules provide consistently for the discharge of
the required registration and notification functions by some
responsible individuals or entities, the specifics concerning such
assignments of responsibility are matters within the jurisdiction's
discretion. References in these Guidelines should be understood
accordingly, so that (for example) a reference to an ``official''
carrying out a registration function does not mean that the function
must be carried out by a government employee, but rather is simply a
way of referring to whatever individual is assigned responsibility for
the function.
With respect to Indian tribes, SORNA recognizes that tribes may
vary in their capacities and preferences regarding the discharge of sex
offender registration
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and notification functions, and accordingly section 127 of SORNA has
special provisions governing the treatment of Indian tribes as
registration jurisdictions or the delegation of registration and
notification functions to the States. Specifically, section 127(a)(1)
generally affords federally recognized Indian tribes a choice between
electing to carry out the sex offender registration and notification
functions specified in SORNA in relation to sex offenders subject to
its jurisdiction, or delegating those functions to a State or States
within which the tribe is located. (Delegation to the State or States
is automatic for a tribe subject to state law enforcement jurisdiction
under 18 U.S.C. 1162, however--see the discussion of section 127(a)(2)
below.) The choice by a tribe whether to become a SORNA registration
jurisdiction or to delegate registration and notification functions to
a State or States must be made within one year of SORNA's enactment on
July 27, 2006.
If a tribe elects to become a SORNA registration jurisdiction, its
functions and responsibilities regarding sex offender registration and
notification are the same as those of a State. Duplication of
registration and notification functions by tribes and States is not
required, however, and such tribes may enter into cooperative
agreements with the States for the discharge of these functions, as
discussed below in connection with section 127(b). If a tribe elects to
delegate to a State, then the State is fully responsible for carrying
out the SORNA registration and notification functions, and the
delegation includes an undertaking by the tribe to ``provide access to
its territory and such other cooperation and assistance as may be
needed to enable [the State] to carry out and enforce the requirements
of [SORNA].'' SORNA section 127(a)(1)(B).
The election to become a SORNA registration jurisdiction, or to
delegate to a State or States, must be made by resolution or other
enactment of the tribal council or comparable governmental body. Hence,
the decision must be made by a tribal governmental entity--''the tribal
council or comparable governmental body''--that has the legal authority
to make binding legislative decisions for the tribe. The tribal
government should promptly notify the SMART Office of its decision and
forward the text of the resolution or other enactment to the SMART
Office by a reliable means of transmission--preferably by the decision
deadline of July 27, 2007, or if that is not feasible, as soon
thereafter as possible.
To satisfy the requirements of SORNA section 127(a)(1), the
resolution or enactment must be adopted on or prior to July 27, 2007,
and must state a decision by the tribal council (or comparable
governmental body) to do one of the following:
Carry out the SORNA requirements relating to sex offender
registration and notification as a jurisdiction subject to those
requirements; or
Delegate the tribe's functions relating to sex offender
registration and notification under SORNA to the State or States within
which the territory of the tribe is located and provide access to its
territory and such other cooperation and assistance as may be needed to
enable the State or States to carry out and enforce the SORNA
requirements.
Additional suggested elements for inclusion in the tribal resolution
(or other enactment) include the following:
Authorization of an appropriate tribal official or
officials to negotiate or enter into cooperative agreements with state
or local governments, if the tribe elects to become a SORNA
registration jurisdiction, and if it is expected that the SORNA
requirements will be carried out wholly or in part through such
agreements.
A direction to tribal officials and agencies to provide
such cooperation and assistance as the State or States may need to
carry out and enforce the SORNA requirements, if the tribe elects to
delegate the SORNA functions to a State or States.
A date or timing notation that shows the resolution was
adopted on or prior to July 27, 2007.
A direction that the SMART Office of the U.S. Department
of Justice be notified of the tribe's election and that the resolution
or enactment be transmitted to the SMART Office.
Subsection (a)(2) of SORNA section 127 specifies three
circumstances in which registration and notification functions are
deemed to be delegated to the State or States in which a tribe is
located, even if the tribe does not make an affirmative decision to
delegate:
Under subparagraph (A) of subsection (a)(2), these
functions are always delegated to the State if the tribe is subject to
the law enforcement jurisdiction of the State under 18 U.S.C. 1162. (If
a tribe's land is in part subject to state law enforcement jurisdiction
under 18 U.S.C. 1162 and in part outside of the areas subject to 18
U.S.C. 1162, then: (i) Sex offender registration and notification
functions are automatically delegated to the relevant State in the
portion of the tribal land subject to 18 U.S.C. 1162, and (ii) the
tribe has a choice between functioning as a registration jurisdiction
or delegating registration and notification functions to the State in
the portion of its land that is not subject to 18 U.S.C. 1162.)
Under subparagraph (B) of subsection (a)(2), these
functions are delegated to the State or States if the tribe does not
make an affirmative election to function as a registration jurisdiction
within one year of the enactment of SORNA--i.e., within one year of
July 27, 2006--or rescinds a previous election to function as a
registration jurisdiction.
Under subparagraph (C) of subsection (a)(2), these
functions are delegated to the State or States if the Attorney General
determines that the tribe has not substantially implemented the
requirements of SORNA and is not likely to become capable of doing so
within a reasonable amount of time.
If a tribe does elect under section 127 to become a SORNA
registration jurisdiction, section 127(b) specifies that this does not
mean that the tribe must duplicate registration and notification
functions that are fully carried out by the State or States within
which the tribe is located, and subsection (b) further authorizes the
tribes and the States to make cooperative arrangements for the
discharge of some or all of these functions. For example, SORNA section
118 requires jurisdictions to make information concerning their sex
offenders available to the public through the Internet. If a tribe did
not want to maintain a separate sex offender Web site for this purpose,
it would not need to do so, as long as a cooperative agreement was made
with the State to have information concerning the tribe's registrants
posted on the State's sex offender Web site. Likewise, a tribe that
elects to be a SORNA registration jurisdiction remains free to make
cooperative agreements under which the State (or a political
subdivision thereof) will handle registration of the tribe's sex
offenders--such as initially registering these sex offenders,
conducting periodic appearances of the sex offenders to verify the
registration information, and receiving reports by the sex offenders
concerning changes in the registration information--to the extent and
in a manner mutually agreeable to the tribe and the State. In general,
the use of cooperative agreements affords tribes flexibility in
deciding which functions under SORNA they would seek to have state
authorities perform, and which they wish to control or discharge
directly. For example, the State could carry out certain registration
functions, but the tribe could retain jurisdiction over the arrest
within its territory of sex
[[Page 30216]]
offenders who fail to register, update registrations, or make required
verification appearances, if a cooperative agreement between the tribe
and the State so provided.
IV. Covered Sex Offenses and Sex Offenders
SORNA refers to the persons required to register under its
standards as ``sex offenders,'' and section 111(1) of SORNA defines
``sex offender'' in the relevant sense to mean ``an individual who was
convicted of a sex offense.'' ``Sex offense'' is in turn defined in
section 111(5) and related provisions. The term encompasses a broad
range of offenses of a sexual nature under the law of any
jurisdiction--including offenses under federal, military, state,
territorial, local, tribal, and foreign law, but with some
qualification regarding foreign convictions as discussed below.
A. Convictions Generally
A ``sex offender'' defined in SORNA section 111(1) is a person who
was ``convicted'' of a sex offense. Hence, whether an individual has a
sex offense ``conviction'' determines whether he or she is within the
minimum categories for which the SORNA standards require registration.
The convictions for which SORNA requires registration include
convictions for sex offenses by any United States jurisdiction,
including convictions for sex offenses under federal, military, state,
territorial, or local law. Indian tribal court convictions for sex
offenses are generally to be given the same effect as convictions by
other United States jurisdictions. It is recognized, however, that
Indian tribal court proceedings may differ from those in other United
States jurisdictions in that the former do not uniformly guarantee the
same rights to counsel that are guaranteed in the latter. Accordingly,
a jurisdiction may choose not to require registration based on a tribal
court conviction resulting from proceedings in which: (i) The defendant
was denied the right to the assistance of counsel, and (ii) the
defendant would have had a right to the assistance of counsel under the
United States Constitution in comparable state proceedings. A
jurisdiction will not be deemed to have failed to substantially
implement SORNA based on its adoption of such an exception.
Since the SORNA registration requirements are predicated on
convictions, registration (or continued registration) is normally not
required under the SORNA standards if the predicate conviction is
reversed, vacated, or set aside, or if the person is pardoned for the
offense on the ground of innocence. This does not mean, however, that
nominal changes or terminological variations that do not relieve a
conviction of substantive effect negate the SORNA requirements. For
example, the need to require registration would not be avoided by a
jurisdiction's having a procedure under which the convictions of sex
offenders in certain categories (e.g., young adult sex offenders who
satisfy certain criteria) are referred to as something other than
``convictions,'' or under which the convictions of such sex offenders
may nominally be ``vacated'' or ``set aside,'' but the sex offender is
nevertheless required to serve what amounts to a criminal sentence for
the offense. Rather, an adult sex offender is ``convicted'' for SORNA
purposes if the sex offender remains subject to penal consequences
based on the conviction, however it may be styled. Likewise, the
sealing of a criminal record or other action that limits the publicity
or availability of a conviction, but does not deprive it of continuing
legal validity, does not change its status as a ``conviction'' for
purposes of SORNA.
``Convictions'' for SORNA purposes include convictions of juveniles
who are prosecuted as adults. It does not include juvenile delinquency
adjudications, except under the circumstances specified in SORNA
section 111(8). Section 111(8) provides that delinquency adjudications
count as convictions ``only if the offender is 14 years of age or older
at the time of the offense and the offense adjudicated was comparable
to or more severe than aggravated sexual abuse (as described in section
2241 of title 18, United States Code), or was an attempt or conspiracy
to commit such an offense.''
Hence, SORNA does not require registration for juveniles
adjudicated delinquent for all sex offenses for which an adult sex
offender would be required to register, but rather requires
registration only for a defined class of older juveniles who are
adjudicated delinquent for committing particularly serious sexually
assaultive crimes or child molestation offenses. Considering the
definition of the federal ``aggravated sexual abuse'' offense
referenced in section 111(8), offenses under a jurisdiction's laws
``comparable to'' that offense are those that cover:
Engaging in a sexual act with another by force or the
threat of serious violence (see 18 U.S.C. 2241(a));
Engaging in a sexual act with another by rendering
unconscious or involuntarily drugging the victim (see 18 U.S.C.
2241(b)); or
Engaging in a sexual act with a child under the age of 12
(see 18 U.S.C. 2241(c)). ``Sexual act'' for this purpose should be
understood to include any of the following: (i) Oral-genital or oral-
anal contact, (ii) any degree of genital or anal penetration, and (iii)
direct genital touching of a child under the age of 16. This follows
from the definition of sexual act in 18 U.S.C. 2246(2), which applies
to the 18 U.S.C. 2241 ``aggravated sexual abuse'' offense.
As with other aspects of SORNA, the foregoing defines minimum
standards. Hence, the inclusions and exclusions in the definition of
``conviction'' for purposes of SORNA do not constrain jurisdictions
from requiring registration by additional individuals--e.g., more
broadly defined categories of juveniles adjudicated delinquent for sex
offenses--if they are so inclined.
B. Foreign Convictions
Section 111(5)(B) of SORNA instructs that registration need not be
required on the basis of a foreign conviction if the conviction ``was
not obtained with sufficient safeguards for fundamental fairness and
due process for the accused under guidelines or regulations established
[by the Attorney General].'' The following standards are adopted
pursuant to section 111(5)(B):
Sex offense convictions under the laws of Canada, Great
Britain, Australia, and New Zealand are deemed to have been obtained
with sufficient safeguards for fundamental fairness and due process,
and registration must be required for such convictions on the same
footing as domestic convictions.
Sex offense convictions under the laws of any foreign
country are deemed to have been obtained with sufficient safeguards for
fundamental fairness and due process if the U.S. State Department, in
its Country Reports on Human Rights Practices, has concluded that an
independent judiciary generally (or vigorously) enforced the right to a
fair trial in that country during the year in which the conviction
occurred. Registration must be required on the basis of such
convictions on the same footing as domestic convictions.
With respect to sex offense convictions in foreign
countries that do not satisfy the criteria stated above, a jurisdiction
is not required to register the convicted person if the jurisdiction
determines--through whatever process or procedure it may choose to
adopt--that the conviction does not constitute a reliable indication of
factual guilt because of the lack of an impartial tribunal, because of
denial of the right to respond to the evidence against the person or to
present exculpatory evidence, or because of denial of the right to the
assistance of counsel.
[[Page 30217]]
The foregoing standards do not mean that jurisdictions must
incorporate these particular criteria or procedures into their
registration systems, if they wish to register foreign sex offense
convicts with fewer qualifications or no qualifications. Rather, the
stated criteria define the minimum categories of foreign convicts for
whom registration is required for compliance with SORNA, and as is
generally the case under SORNA, jurisdictions are free to require
registration more broadly than the SORNA minimum.
C. Sex Offenses Generally
The general definition of sex offenses for which registration is
required under the SORNA standards appears in section 111(5)(A). The
clauses in the definition cover the following categories of offenses:
Sexual Act And Sexual Contact Offenses (section
111(5)(A)(i)): The first clause in the definition covers ``a criminal
offense that has an element involving a sexual act or sexual contact
with another.'' (``Criminal offense'' in the relevant sense refers to
offenses under any body of criminal law, including state, local,
tribal, foreign, military, and other offenses, as provided in section
111(6).) The offenses covered by this clause should be understood to
include all sexual offenses whose elements involve: (i) Any type or
degree of genital, oral, or anal penetration, or (ii) any sexual
touching of or contact with a person's body, either directly or through
the clothing. Cf. 18 U.S.C. 2246(2)-(3) (federal law definitions of
sexual act and sexual contact).
Specified Offenses Against Minors (section 111(5)(A)(ii)):
The second clause in the definition covers ``a criminal offense that is
a specified offense against a minor.'' The statute provides a detailed
definition of ``specified offense against a minor'' in section 111(7),
which is discussed separately below.
Specified Federal Offenses (section 111(5)(A)(iii)): The
third clause covers most sexual offenses under federal law. The covered
chapters and offense provisions in the federal criminal code are
explicitly identified by citation.
Specified Military Offenses (section 111(5)(A)(iv)): The
fourth clause covers sex offenses under the Uniform Code of Military
Justice, as specified by the Secretary of Defense.
Attempts And Conspiracies (section 111(5)(A)(v)): The
final clause in the definition covers attempts and conspiracies to
commit offenses that are otherwise covered by the definition of ``sex
offenses.'' This includes both offenses prosecuted under general
attempt or conspiracy provisions, where the object offense falls under
the SORNA ``sex offense'' definition, and particular offenses that are
defined as, or in substance amount to, attempts or conspiracies to
commit offenses that are otherwise covered. For example, in the latter
category, a jurisdiction may define an offense of ``assault with intent
to commit rape.'' Whether or not the word ``attempt'' is used in the
definition of the offense, this is in substance an offense that covers
certain attempts to commit rapes and hence is covered under the final
clause of the SORNA definition.
SORNA section 111(5)(C) qualifies the foregoing definition of ``sex
offense'' to exclude ``[a]n offense involving consensual sexual conduct
* * * if the victim was an adult, unless the adult was under the
custodial authority of the offender at the time of the offense, or if
the victim was at least 13 years old and the offender was not more than
four years older than the victim.'' The general exclusion with respect
to consensual sexual offenses involving adult victims means, for
example, that a jurisdiction does not have to require registration
based on prostitution offenses that consist of the offender paying or
receiving payment from an adult for a sexual act between them (unless
the victim is under the custodial authority of the offender). The
exclusion for certain cases involving child victims based on victim age
and age difference means that a jurisdiction may not have to require
registration in some cases based on convictions under provisions that
prohibit sexual acts or contact (even if consensual) with underage
persons. For example, under the laws of some jurisdictions, an 18-year-
old may be criminally liable for engaging in consensual sex with a 15-
year-old. The jurisdiction would not have to require registration in
such a case to comply with the SORNA standards, since the victim was at
least 13 and the offender was not more than four years older.
D. Specified Offenses Against Minors
The offenses for which registration is required under the SORNA
standards include any ``specified offense against a minor'' as defined
in section 111(7). The SORNA section 111(7) definition of specified
offense against a minor covers any offense against a minor--i.e., a
person under the age of 18, as provided in section 111(14)--that
involves any of the following:
Kidnapping or False Imprisonment of a Minor (section
111(7)(A)-(B)): These clauses cover ``[a]n offense (unless committed by
a parent or guardian) involving kidnapping [of a minor]'' and ``[a]n
offense (unless committed by a parent or guardian) involving false
imprisonment [of a minor].'' The relevant offenses are those whose
gravamen is abduction or unlawful restraint of a person, which go by
different names in different jurisdictions, such as ``kidnapping,''
``criminal restraint,'' or ``false imprisonment.'' Jurisdictions can
implement the offense coverage requirement of these clauses by
requiring registration for persons convicted of offenses of this type
(however designated) whose victims were below the age of 18. It is left
to jurisdictions' discretion under these clauses whether registration
should be required for such offenses in cases where the offender is a
parent or guardian of the victim.
Solicitation of a Minor to Engage in Sexual Conduct
(section 111(7)(C)): This clause covers ``[s]olicitation [of a minor]
to engage in sexual conduct.'' ``Solicitation'' under this clause and
other SORNA provisions that use the term should be understood broadly
to include any direction, request, enticement, persuasion, or
encouragement of a minor to engage in sexual conduct. ``Sexual
conduct'' should be understood to refer to any sexual activity
involving physical contact. (See the discussion later in this list of
``criminal sexual conduct'' under section 111(7)(H).) Hence,
jurisdictions can implement the offense coverage requirement under this
clause by requiring registration, in cases where the victim was below
the age of 18, based on:
[cir] Any conviction for an offense involving solicitation of the
victim under a general attempt or solicitation provision, where the
elements of the object offense include sexual activity involving
physical contact, and
[cir] Any conviction for an offense involving solicitation of the
victim under any provision defining a particular crime whose elements
include soliciting or attempting to engage in sexual activity involving
physical contact.
Use of a Minor in a Sexual Performance (section
111(7)(D)): This clause covers offenses involving ``[u]se [of a minor]
in a sexual performance.'' That includes both live performances and
using minors in the production of pornography, and has some overlap
with section 111(7)(G), which expressly covers child pornography
offenses.
Solicitation of a Minor to Practice Prostitution (section
111(7)(E)): This
[[Page 30218]]
clause covers offenses involving ``[s]olicitation [of a minor] to
practice prostitution.'' Jurisdictions can implement the offense
coverage requirement under this clause by requiring registration, in
cases where the victim was below the age of 18, based on:
[cir] Any conviction for an offense involving solicitation of the
victim under a general attempt or solicitation provision, where the
object offense is a prostitution offense, and
[cir] Any conviction for an offense involving solicitation of the
victim under any provision defining a particular crime whose elements
include soliciting or attempting to get a person to engage in
prostitution.
Video Voyeurism Involving a Minor (section 111(7)(F)):
This clause covers ``[v]ideo voyeurism as described in section 1801 of
title 18, United States Code [against a minor].'' The cited federal
offense in essence covers capturing the image of a private area of
another person's body, where the victim has a reasonable expectation of
privacy against such conduct. Jurisdictions can implement the offense
coverage requirement under this clause by requiring registration for
offenses of this type, in cases where the victim was below the age of
18.
Possession, Production, or Distribution of Child
Pornography (section 111(7)(G)): This clause covers ``possession,
production, or distribution of child pornography.'' Jurisdictions can
implement the offense coverage requirement under this clause by
requiring registration for offenses whose gravamen is creating or
participating in the creation of sexually explicit visual depictions of
persons below the age of 18, making such depictions available to
others, or having or receiving such depictions.
Criminal Sexual Conduct Involving a Minor and Related
Internet Activities (section 111(7)(H)): This clause covers
``[c]riminal sexual conduct involving a minor, or the use of the
Internet to facilitate or attempt such conduct.'' The definition has
two parts:
[cir] The ``criminal sexual conduct involving a minor'' language in
this definition covers sexual offenses whose elements involve physical
contact with the victim--such as provisions defining crimes of
``rape,'' ``sexual assault,'' ``sexual abuse,'' or ``incest''--in cases
where the victim was below 18 at the time of the offense. In addition,
it covers offenses whose elements involve using other persons in
prostitution--such as provisions defining crimes of ``pandering,''
``procuring,'' or ``pimping''--in cases where the victim was below 18
at the time of the offense. Coverage is not limited to cases where the
victim's age is an element of the offense, such as prosecution for
specially defined child molestation or child prostitution offenses.
Jurisdictions can implement the offense coverage requirement under the
``criminal sexual conduct involving a minor'' language of this clause
by requiring registration for ``criminal sexual conduct'' offenses as
described above whenever the victim was in fact below the age of 18 at
the time of the offense. (Section 111(7)(C) and (E) separately require
coverage of offenses involving solicitation of a minor to engage in
sexual conduct or to practice prostitution, but registration must be
required for offenses involving sexual conduct with a minor or the use
of a minor in prostitution in light of section 111(7)(H), whether or
not the offense involves ``solicitation'' of the victim.)
[cir] Jurisdictions can implement the ``use of the Internet to
facilitate or attempt such conduct'' part of this definition by
requiring registration for offenses that involve use of the Internet in
furtherance of criminal sexual conduct involving a minor as defined
above, such as attempting to lure minors through Internet
communications for the purpose of sexual activity.
Conduct By Its Nature A Sex Offense Against a Minor
(section 111(7)(I)): The final clause covers ``[a]ny conduct that by
its nature is a sex offense against a minor.'' It is intended to ensure
coverage of convictions under statutes defining sexual offenses in
which the status of the victim as a minor is an element of an offense,
such as specially defined child molestation or child prostitution
offenses, and other offenses prohibiting sexual activity with underage
persons. Jurisdictions can comply with the offense coverage requirement
under this clause by including convictions for such offenses in their
registration requirements.
E. Protected Witnesses
The requirement that jurisdictions substantially implement SORNA
does not preclude their taking measures needed to protect the security
of individuals who have been provided new identities and relocated
under the federal witness security program (see 18 U.S.C. 3521 et seq.)
or under other comparable witness security programs operated by non-
federal jurisdictions. A jurisdiction may conclude that it is necessary
to exclude an individual afforded protection in such a program from its
sex offender registry or from public notification for security reasons,
though the individual otherwise satisfies the criteria for registration
and notification under SORNA. Alternatively, the jurisdiction may
choose not to waive registration but may identify the registrant in the
registration system records only by his or her new identity or data, if
such modifications can be so devised that they are not transparent and
do not permit the registrant's original identity or participation in a
witness security program to be inferred. Jurisdictions are permitted
and encouraged to make provision in their laws and procedures to
accommodate consideration of the security of such individuals and to
honor requests from the United States Marshals Service and other
agencies responsible for witness protection in order to ensure that
their original identities are not compromised.
With respect to witnesses afforded federal protection, 18 U.S.C.
3521(b)(1)(H) specifically authorizes the Attorney General to ``protect
the confidentiality of the identity and location of persons subject to
registration requirements as convicted offenders under Federal or State
law, including prescribing alternative procedures to those otherwise
provided by Federal or State law for registration and tracking of such
persons.'' U.S. Department of Justice Witness Security Program
officials accordingly determine on a case-by-case basis whether such
witnesses will be required to register, and if registration occurs,
whether it will utilize new identities, modified data, or other special
conditions or procedures that are warranted to avoid jeopardizing the
safety of the protected witnesses.
V. Classes of Sex Offenders
Section 111(2)-(4) of SORNA defines three ``tiers'' of sex
offenders. The tier classifications have implications in three areas:
(i) Under section 115, the required duration of registration depends
primarily on the tier; (ii) under section 116, the required frequency
of in-person appearances by sex offenders to verify registration
information depends on the tier; (iii) under section 118(c)(1),
information about tier I sex offenders convicted of offenses other than
specified offenses against a minor may be exempted from Web site
disclosure.
The use of the ``tier'' classifications in SORNA relates to
substance, not form or terminology. Thus, to implement the SORNA
requirements, jurisdictions do not have to label their sex offenders as
``tier I,'' ``tier II,'' and ``tier III,'' and do not have to adopt any
other particular approach to labeling or categorization of sex
offenders. Rather, the SORNA
[[Page 30219]]
requirements are met so long as sex offenders who satisfy the SORNA
criteria for placement in a particular tier are consistently subject to
at least the duration of registration, frequency of in-person
appearances for verification, and extent of Web site disclosure that
SORNA requires for that tier.
For example, suppose that a jurisdiction decides to subject all sex
offenders to lifetime registration, quarterly verification appearances,
and full Web site posting as described in Part VII of these Guidelines.
That would meet the SORNA requirements with respect to sex offenders
satisfying the ``tier III'' criteria, and exceed the minimum required
by SORNA with respect to sex offenders satisfying the ``tier II'' or
``tier I'' criteria. Hence, such a jurisdiction would be able to
implement the SORNA requirements with respect to all sex offenders
without any labeling or categorization, and without having to assess
individual registrants against the tier criteria in the SORNA
definitions. Likewise, any other approach a jurisdiction may devise is
acceptable if it ensures that sex offenders satisfying the criteria for
each SORNA tier are subject to duration of registration, appearance
frequency, and Web site disclosure requirements that meet those SORNA
requires for the tier.
Turning to the specific tier definitions, SORNA section 111(2)
defines ``tier I sex offender'' to mean ``a sex offender other than a
tier II or tier III sex offender.'' Thus, tier I is a residual class
that includes all sex offenders who do not satisfy the criteria for
tier II or tier III. For example, tier I includes a sex offender whose
registration offense is not punishable by imprisonment for more than
one year, a sex offender whose registration offense is the receipt or
possession of child pornography, and a sex offender whose registration
offense is a sexual assault against an adult that involves sexual
contact but not a completed or attempted sexual act.
The definitions of tier II and tier III--in section 111(3) and
111(4) respectively--are both limited to cases in which the offense for
which the sex offender is required to register ``is punishable by
imprisonment for more than 1 year.'' This means that the statutory
maximum penalty possible for the offense exceeds one year. It does not
mean that inclusion in these tiers is limited to cases in which the sex
offender is actually sentenced to more than a year of imprisonment.
Because the definitions of tier II and tier III are limited to
certain offenses punishable by imprisonment for more than one year, and
federal law does not permit imprisonment for more than one year based
on Indian tribal court convictions, all tribal court convictions are
tier I offenses. Moreover, regardless of which jurisdiction convicts
the sex offender, the requirements with respect to the potential length
of imprisonment under the statute relate to individual offenses rather
than to aggregate penalties. For example, suppose that a sex offender
is charged in three counts with the commission of sex offenses each of
which is punishable by at most one year of imprisonment, and upon
conviction is sentenced to three consecutive terms of six months of
incarceration. Though the aggregate penalty is 18 months, these
convictions do not place the sex offender above tier I, because each
offense was not punishable by more than one year of imprisonment.
If the requirement of an offense punishable by imprisonment for
more than one year is satisfied, the remaining offense-related criteria
for tier II are that the registration offense falls within one of two
lists. In general terms, these lists cover most sexual abuse or
exploitation offenses against minors. (Here as elsewhere in SORNA,
``minor'' means a person under the age of 18--see SORNA section
111(14).) The first list, appearing in section 111(3)(A), covers
offenses committed against minors that are comparable to or more severe
than a number of cited federal offenses--those under 18 U.S.C. 1591,
2422(b), 2423(a), and 2244--and attempts and conspiracies to commit
such offenses. The second list, appearing in section 111(a)(3)(B),
covers use of a minor in a sexual performance, solicitation of a minor
to practice prostitution, and production or distribution of child
pornography. Determining whether a jurisdiction's offenses satisfy the
criteria for this tier is simplified by recognizing that the various
cited and described offenses essentially cover:
Offenses involving the use of minors in prostitution, and
inchoate or preparatory offenses (including attempts, conspiracies, and
solicitations) that are directed to the commission of such offenses;
Offenses against minors involving sexual contact--i.e.,
any sexual touching of or contact with the intimate parts of the body,
either directly or through the clothing--and inchoate or preparatory
offenses (including attempts, conspiracies, and solicitations) that are
directed to the commission of such offenses;
Offenses involving use of a minor in a sexual performance;
and
Offenses involving the production or distribution of child
pornography, i.e., offenses whose gravamen is creating or participating
in the creation of sexually explicit visual depictions of minors or
making such depictions available to others.
Hence, jurisdictions can implement the relevant SORNA requirements
by according ``tier II'' treatment to sex offenders convicted of
offenses of these four types. The sex offenders who must be so treated
are not limited to those convicted of offenses of these types whose
elements require that the victim be below a certain age, but rather
include as well those convicted of more generally defined offenses that
may be committed against either adult or child victims, in cases in
which the victim was in fact below the age of 18. For example, in a
case in which the sex offender was convicted of a generally defined
``sexual contact'' offense, whose elements include no specification as
to victim age, tier II treatment is required if the victim was in fact
below 18.
The corresponding offense coverage specifications for ``tier III''
in section 111(4)(A)-(B) cover offenses punishable by more than one
year of imprisonment in the following categories:
Offenses comparable to or more severe than aggravated
sexual abuse or sexual abuse as described in 18 U.S.C. 2241 and 2242,
or an attempt or conspiracy to commit such an offense. Considering the
definitions of the cited federal offenses, comparable offenses under
the laws of other jurisdictions would be those that cover:
[cir] Engaging in a sexual act with another by force or threat (see
18 U.S.C. 2241(a), 2242(1));
[cir] Engaging in a sexual act with another who has been rendered
unconscious or involuntarily drugged, or who is otherwise incapable of
appraising the nature of the conduct or declining to participate (see
18 U.S.C. 2241(b), 2242(2)), or
[cir] Engaging in a sexual act with a child under the age of 12
(see 18 U.S.C. 2241(c)).
Considering the related definition in 18 U.S.C. 2246(2), ``sexual
act'' for this purpose would include: (i) Oral-genital or oral-anal
contact, (ii) any degree of genital or anal penetration, and (iii)
direct genital touching of a child under the age of 16. (This
definition of ``sexual act'' is the same as that applicable in the
SORNA requirement of registration based on certain juvenile delinquency
adjudications--see Part IV.A of these Guidelines--but the range of
covered offenses is in some respects broader here, as indicated;
compare SORNA section 111(4)(A)(i), which references both aggravated
sexual abuse and sexual abuse, with SORNA section 111(8), the
[[Page 30220]]
juvenile coverage provision, which references only aggravated sexual
abuse.)
Offenses against a child below the age of 13 that are
comparable to or more severe than abusive sexual contact as defined in
18 U.S.C. 2244, or an attempt or conspiracy to commit such an offense.
Considering the definitions of the federal offenses in 18 U.S.C. 2244
and the related definition in 18 U.S.C. 2246(3), comparable offenses
under the laws of other jurisdictions would be those that cover sexual
touching of or contact with the intimate parts of the body, either
directly or through the clothing, where the victim is under 13.
Kidnapping of a minor (unless committed by a parent or
guardian).
Hence, jurisdictions can implement the relevant SORNA requirements
by according ``tier III'' treatment to sex offenders convicted of
offenses of these three types.
In addition to including criteria relating to the nature of the
registration offense, the definitions of tier II and tier III accord
significance to a registrant's history of recidivism. Specifically,
section 111(3)(C) places in tier II any sex offender whose registration
offense is punishable by imprisonment for more than one year, where
that offense ``occurs after the offender becomes a tier I sex
offender.'' Thus, any sex offender whose registration offense is
punishable by more than one year of imprisonment who has a prior sex
offense conviction is at least in tier II. Likewise, section 111(4)(C)
places in tier III any sex offender whose registration offense is
punishable by imprisonment for more than one year, where that offense
``occurs after the offender becomes a tier II sex offender.'' Thus, any
sex offender whose registration offense is punishable by more than one
year of imprisonment, and who at the time of that offense already
satisfied the criteria for inclusion in tier II, is in tier III.
VI. Required Registration Information
Section 114 of SORNA defines the required minimum informational
content of sex offender registries. It is divided into two lists. The
first list, set forth in subsection (a) of section 114, describes
information that the registrant will normally be in a position to
provide. The second list, set forth in subsection (b), describes
information that is likely to require some affirmative action by the
jurisdiction to obtain, beyond asking the sex offender for the
information. Supplementary to the information that the statute
explicitly describes, section 114(a)(7) and (b)(8) authorize the
Attorney General to specify additional information that must be
obtained and included in the registry. This expansion authority is
utilized to require including in the registries a number of additional
types of information, such as information about registrants' e-mail
addresses, telephone numbers, and the like, information concerning the
whereabouts of registrants who lack fixed abodes or definite places of
employment, and information about temporary lodging, as discussed
below.
In order to implement requirements for the sharing or disclosure of
registration information appearing in other sections of SORNA (sections
113(c), 119(b), 121(b)--see Parts VII and X of these Guidelines for
discussion), jurisdictions will need to maintain all required
registration information in digitized form that will enable it to be
immediately accessed by or transmitted to various entities. Hence, the
jurisdiction's registry must be an electronic database, and
descriptions of required types of information in section 114 should
consistently be understood as referring to digitizable information
rather than hard copies or physical objects. This does not mean,
however, that all required registration information must be reproduced
in a single segregated database, since the same effect may be achieved
by including in the central registry database links or identification
numbers that provide access to the information in other databases in
which it is included (e.g., with respect to criminal history,
fingerprint, and DNA information). These points are further discussed
in connection with the relevant informational items.
As with SORNA's requirements generally, the informational
requirements of section 114 and these Guidelines define a floor, not a
ceiling, for jurisdictions' registries. Hence, jurisdictions are free
to obtain and include in their registries a broader range of
information than the minimum requirements described in this Part.
The required minimum informational content for sex offender
registries is as follows:
Name, Aliases, and Remote Communication Identifiers and
Addresses (section 114(a)(1), (a)(7)):
[cir] Names and Aliases (section 114(a)(1)): The registry must
include ``[t]he name of the sex offender (including any alias used by
the individual).'' The names and aliases required by this provision
include, in addition to the registrant's primary or given name,
nicknames and pseudonyms generally, regardless of the context in which
they are used, any designations or monikers used for self-
identification in Internet communications or postings, and traditional
names given by family or clan pursuant to ethnic or tribal tradition.
[cir] Internet Identifiers and Addresses (section 114(a)(7)): In
the context of Internet communications there may be no clear line
between names or aliases that are required to be registered under SORNA
section 114(a)(1) and addresses that are used for routing purposes.
Moreover, regardless of the label, including in registries information
on designations used by sex offenders for purposes of routing or self-
identification in Internet communications--e.g., e-mail and instant
messaging addresses--serves the underlying purposes of sex offender
registration and notification. Among other potential uses, having this
information may help in investigating crimes committed online by
registered sex offenders--such as attempting to lure children or
trafficking in child pornography through the Internet--and knowledge by
sex offenders that their Internet identifiers are known to the
authorities may help to discourage them from engaging in such criminal
activities. The authority under section 114(a)(7) is accordingly
exercised to require that the information included in the registries
must include all designations used by sex offenders for purposes of
routing or self-identification in Internet communications or postings.
[cir] Telephone Numbers (section 114(a)(7)): Requiring sex
offenders to provide their telephone numbers (both for fixed location
phones and cell phones) furthers the objectives of sex offender
registration. One obvious purpose in having such information is to
facilitate communication between registration personnel and a sex
offender in case issues arise relating to the sex offender's
registration. Moreover, as communications technology advances, the
boundaries blur between text-based and voice-based communications
media. Telephone calls may be transmitted through the Internet. Text
messages may be sent between cell phones. Regardless of the particular
communication medium, and regardless of whether the communication
involves text or voice, sex offenders may potentially utilize remote
communications in efforts to contact or lure potential victims. Hence,
including phone numbers in the registration information may help in
investigating crimes committed by registrants that involved telephonic
communication with the victim, and knowledge that their phone numbers
are known to the authorities may help sex offenders to resist the
temptation to commit crimes
[[Page 30221]]
by this means. The authority under section 114(a)(7) is accordingly
exercised to require that the information included in the registries
must include sex offenders' telephone numbers and any other
designations used by sex offenders for purposes of routing or self-
identification in telephonic communications.
Social Security Number (section 114(a)(2), (a)(7)): The
registry must include ``[t]he Social Security number of the sex
offender.'' In addition to any valid Social Security number issued to
the registrant by the government, the information the jurisdiction
requires registrants to provide under this heading must include any
number that the registrant uses as his or her purported Social Security
number since registrants may, for example, attempt to use false Social
Security numbers in seeking employment that would provide access to
children. To the extent that purported (as opposed to actual) Social
Security numbers may be beyond the scope of the information required by
section 114(a)(2), the authority under section 114(a)(7) is exercised
to require that information on such purported numbers be obtained and
included in the registry as well.
Residence, Lodging, and Travel Information (section
114(a)(3), (a)(7)):
[cir] Residence Address (section 114(a)(3)): The registry must
include ``the address of each residence at which the sex offender
resides or will reside.'' As provided in SORNA section 111(13),
residence refers to ``the location of the individual's home or other
place where the individual habitually lives.'' (For more as to the
meaning of ``resides'' under SORNA, see Part VIII of these Guidelines.)
The statute refers to places in which the sex offender ``will reside''
so as to cover situations in which, for example, a sex offender is
initially being registered prior to release from imprisonment, and
hence is not yet residing in the place or location to which he or she
expects to go following release.
[cir] Other Residence Information (section 114(a)(7)): Sex
offenders who lack fixed abodes are nevertheless required to register
in the jurisdictions in which they reside, as discussed in Part VIII of
these Guidelines. Such sex offenders cannot provide the residence
address required by section 114(a)(3) because they have no definite
``address'' at which they live. Nevertheless, some more or less
specific description should normally be obtainable concerning the place
or places where such a sex offender habitually lives--e.g., information
about a certain part of a city that is the sex offender's habitual
locale, a park or spot on the street (or a number of such places) where
the sex offender stations himself during the day or sleeps at night,
shelters among which the sex offender circulates, or places in public
buildings, restaurants, libraries, or other establishments that the sex
offender frequents. Having this type of location information serves the
same public safety purposes as knowing the whereabouts of sex offenders
with definite residence addresses. Hence, the authority under SORNA
section 114(a)(7) is exercised to require that information be obtained
about where sex offenders who lack fixed abodes habitually live with
whatever definiteness is possible under the circumstances. Likewise, in
relation to sex offenders who lack a residence address for any other
reason--e.g., a sex offender who lives in a house in a rural or tribal
area that has no street address--the registry must include information
that identifies where the individual has his or her home or habitually
lives.
[cir] Temporary Lodging Information (section 114(a)(7)): Sex
offenders who reoffend may commit new offenses at locations away from
the places in which they have a permanent or long-term presence.
Indeed, to the extent that information about sex offenders' places of
residence is available to the authorities, but information is lacking
concerning their temporary lodging elsewhere, the relative
attractiveness to sex offenders of molesting children or committing
other sexual crimes while traveling or visiting away from home
increases. Hence, to achieve the objectives of sex offender
registration, it is valuable to have information about other places in
which sex offenders are staying, even if only temporarily. The
authority under SORNA section 114(a)(7) is accordingly exercised to
provide that jurisdictions must require sex offenders to provide
information about any place in which the sex offender is staying for
seven or more days, including identifying the place and the period of
time the sex offender is staying there. The benefits of having this
information include facilitating the successful investigation of crimes
committed by sex offenders while away from their normal places of
residence, employment, or school attendance, and decreasing the
attractiveness to sex offenders of committing crimes in such
circumstances.
[cir] Travel and Immigration Documents (section 114(a)(7)): The
authority under SORNA section 114(a)(7) is exercised to provide that
registrants must be required to produce or provide information about
their passports, if they have passports, and that registrants who are
aliens must be required to produce or provide information about
documents establishing their immigration status. The registry must
include digitized copies of these documents, the critical information
from these documents, or links to another database or databases that
contain such information. Having this type of information in the
registries serves various purposes, including helping to locate and
apprehend registrants who may attempt to leave the United States after
committing new sex offenses or registration violations; facilitating
the tracking and identification of registrants who leave the United
States but later reenter while still required to register (see SORNA
section 128); and crosschecking the accuracy and completeness of other
types of information that registrants are required to provide--e.g., if
immigration documents show that an alien registrant is in the United
States on a student visa but the registrant fails to provide
information concerning the school attended as required by SORNA section
114(a)(5).
Employment Information (section 114(a)(4), (a)(7)):
[cir] Employer Name and Address (section 114(a)(4)): The registry
must include ``[t]he name and address of any place where the sex
offender is an employee or will be an employee.'' SORNA section 111(12)
explains that ``employee'' includes ``an individual who is self-
employed or works for any other entity, whether compensated or not.''
As the definitional provisions indicate, the information required under
this heading is not limited to information relating to compensated work
or a regular occupation, but includes as well name and address
information for any place where the registrant works as a volunteer or
otherwise works without remuneration.
[cir] Other Employment Information (section 114(a)(7)): A sex
offender who is employed may not have a fixed place of employment--
e.g., a long-haul trucker whose ``workplace'' is roads and highways
throughout the country, or a self-employed handyman who works out of
his home and does repair or home-improvement work at other people's
homes. Knowing as far as possible where such a sex offender is in the
course of employment serves the same public safety purposes as the
corresponding information regarding a sex offender who is employed at a
fixed location. The authority under section 114(a)(7) is accordingly
exercised to require that information be obtained and included in the
registry concerning the
[[Page 30222]]
places where such a sex offender works with whatever definiteness is
possible under the circumstances, such as information about normal
travel routes or the general area(s) in which the sex offender works.
[cir] Professional Licenses (section 114(a)(7)): The authority
under section 114(a)(7) is exercised to require that information be
obtained and included in the registry concerning all licensing of the
registrant that authorizes the registrant to engage in an occupation or
carry out a trade or business. Information of this type may be helpful
in locating the registrant if he or she absconds, may provide a basis
for notifying the responsible licensing authority if the registrant's
conviction of a sex offense may affect his or her eligibility for the
license, and may be useful in crosschecking the accuracy and
completeness of other information the registrant is required to
provide--e.g., if the registrant is licensed to engage in a certain
occupation but does not provide name or place of employment information
as required by section 114(a)(4) for such an occupation.
School Information (section 114(a)(5)): The registry must
include ``[t]he name and address of any place where the sex offender is
a student or will be a student.'' Section 111(11) defines ``student''
to mean ``an individual who enrolls in or attends an educational
institution, including (whether public or private) a secondary school,
trade or professional school, and institution of higher education.'' As
the statutory definition indicates, the requirement extends to all
types of educational institutions. Hence, this information must be
provided for private schools as well as public schools, including both
parochial and non-parochial private schools, and regardless of whether
the educational institution is attended for purposes of secular,
religious, or cultural studies. The registration information
requirement of section 114(a)(5) refers to the names and addresses of
educational institutions where a sex offender has or will have a
physical presence as a student. It does not require information about a
sex offender's participating in courses only remotely through the mail
or the Internet. (Internet identifiers and addresses used by a sex
offender in such remote communications, however, must be included in
the registration information as provided in the discussion of
``Internet Identifiers and Addresses'' earlier in this list.)
Vehicle Information (section 114(a)(6), (a)(7)): The
registry must include ``[t]he license plate number and a description of
any vehicle owned or operated by the sex offender.'' This includes, in
addition to vehicles registered to the sex offender, any vehicle that
the sex offender regularly drives, either for personal use or in the
course of employment. A sex offender may not regularly use a particular
vehicle or vehicles in the course of employment, but may have access to
a large number of vehicles for employment purposes, such as using many
vehicles from an employer's fleet in a delivery job. In a case of this
type, jurisdictions are not required to obtain information concerning
all such vehicles to satisfy SORNA's minimum informational
requirements, but jurisdictions are free to require such information if
they are so inclined. The authority under section 114(a)(7) is
exercised to define and expand the required information concerning
vehicles in two additional respects. First, the term ``vehicle'' should
be understood to include watercraft and aircraft, in addition to land
vehicles, so descriptive information must be required for all such
vehicles owned or operated by the sex offender. The information must
include the license plate number if it is a type of vehicle for which
license plates are issued, or if it has no license plate but does have
some other type of registration number or identifier, then information
concerning such a registration number or identifier must be included.
To the extent that any of the information described above may be beyond
the scope of section 114(a)(6), the authority under section 114(a)(7)
is exercised to provide that it must be obtained and included in the
registry. Second, the sex offender must be required to provide and the
registry must include information concerning the place or places where
the registrant's vehicle or vehicles are habitually parked, docked, or
otherwise kept. Having information of this type may help to prevent
flight, facilitate investigation, or effect an apprehension if the
registrant is implicated in the commission of new offenses or violates
registration requirements.
Date of Birth (section 114(a)(7)). The authority under
section 114(a)(7) is exercised to require date of birth information for
registrants, which must be included in the registry. Since date of
birth is regularly utilized as part of an individual's basic
identification information, having this information in the registry is
of obvious value in helping to identify, track, and locate registrants.
The information the jurisdiction requires registrants to provide under
this heading must include any date that the registrant uses as his or
her purported date of birth--not just his or her actual date of birth--
since registrants may, for example, provide false date of birth
information in seeking employment that would provide access to
children.
Physical Description (section 114(b)(1)): The registry
must include ``[a] physical description of the sex offender.'' This
must include a description of the general physical appearance or
characteristics of the sex offender, and any identifying marks, such as
scars or tattoos.
Text of Registration Offense (section 114(b)(2)): The
registry must include ``[t]he text of the provision of law defining a
criminal offense for which the sex offender is registered.'' As with
other information in the registries, this does not mean that the
registry must be a paper records system that includes a hard copy of
the statute defining the registration offense. Rather, the registry
must be an electronic database, and the relevant statutory provision
must be included as electronic text. Alternatively, this requirement
can be satisfied by including in the central registry database a link
or citation to the statute defining the registration offense if: (i)
Doing so provides online access to the linked or cited provision, and
(ii) the link or citation will continue to provide access to the
offense as formulated at the time the registrant was convicted of it,
even if the defining statute is subsequently amended.
Criminal History and Other Criminal Justice Information
(section 114(b)(3)): The registry must include ``[t]he criminal history
of the sex offender, including the date of all arrests and convictions;
status of parole, probation, or supervised release; registration status
[i.e., whether the sex offender is in violation of the registration
requirement and unlocatable]; and the existence of any outstanding
arrest warrants for the sex offender.'' This requirement can be
satisfied by including the specified types of information in the
central registry database, or by including in that database links or
identifying numbers that provide access to these types of information
in criminal justice databases that contain them.
Current Photograph (section 114(b)(4)): The registry
information must include ``[a] current photograph of the sex
offender.'' As with other information in the registries, this does not
mean that the registry must be a paper records system that includes
physical photographs. Rather, the photographs of sex offenders must be
included in digitized form in an electronic registry, so as to permit
the
[[Page 30223]]
electronic transmission of registration information that is necessary
to implement other SORNA requirements. (For more about the taking of
photographs and keeping them current, see the discussion of periodic
in-person appearances in Part XI of these Guidelines.)
Fingerprints and Palm Prints (section 114(b)(5)): The
registry information must include ``[a] set of fingerprints and palm
prints of the sex offender.'' As with other registration information,
this should be understood to refer to digitized fingerprint and palm
print information rather than physical fingerprint cards and palm
prints. The requirement can be satisfied by including such digitized
fingerprint and palm print information in the central registry
database, or by providing links or identifying numbers in the central
registry database that provide access to fingerprint and palm print
information in other databases for each registered sex offender.
DNA (section 114(b)(6)): The registry information must
include ``[a] DNA sample of the sex offender.'' This means that a DNA
sample must be taken, or must have been taken, from the sex offender,
for purposes of analysis and entry of the resulting DNA profile into
the Combined DNA Index System (CODIS). The requirement is satisfied by
including information in the central registry database that confirms
collection of such a sample from the sex offender for purposes of
analysis and entry of the DNA profile into CODIS or inclusion of the
sex offender's DNA profile in CODIS.
Driver's License or Identification Card (section 114(b)(7)): The
registry information must include ``[a] photocopy of a valid driver's
license or identification card issued to the sex offender by a
jurisdiction.'' The requirement can be satisfied by including a
digitized photocopy of the specified documents in the central registry
database for each sex offender to whom such a document has been issued.
Alternatively, it can be satisfied by including in the central registry
database links or identifying numbers that provide access in other
databases (such as a Department of Motor Vehicles database) to the
information that would be shown by such a photocopy.
VII. Disclosure and Sharing of Information
The SORNA requirements for disclosure and sharing of information
about registrants appear primarily in section 118, which is concerned
with sex offender Web sites, and section 121, which is concerned with
community notification in a broader sense and with some more targeted
types of disclosures. The two sections will be discussed separately.
A. Sex Offender Web Sites
Section 118(a) of SORNA states a general rule that jurisdictions
are to ``make available on the Internet, in a manner that is readily
accessible to all jurisdictions and to the public, all information
about each sex offender in the registry.'' This general requirement is
subject to certain mandatory and discretionary exemptions, appearing in
subsections (b) and (c) of section 118, which are discussed below.
Currently, all 50 States, the District of Columbia, Puerto Rico, and
Guam have sex offender Web sites that make information about registered
sex offenders available to the public. The listed jurisdictions may
need to modify their existing Web sites to varying degrees to implement
the requirements of section 118.
Beyond stating a general rule of Web site posting for sex offender
information, subsection (a) of section 118 includes requirements about
the field-search capabilities of the jurisdictions' Web sites. In part,
it states that these field search capabilities must include searches by
``zip code or geographic radius set by the user.'' In other words, the
Web sites must be so designed that members of the public who access a
Web site are able to specify particular zip code areas, and are able to
specify geographic radii--e.g., within one mile of a specified
address--and thereby bring up on the Web site the information about all
of the posted sex offenders in the specified zip code or geographic
area.
Subsection (a) of section 118 further states that each Web site
``shall also include * * * all field search capabilities needed for
full participation in the Dru Sjodin National Sex Offender Public Web
site and shall participate in that Web site as provided by the Attorney
General.'' The statutory basis for the referenced National Sex Offender
Public Web site (NSOPW) appears in SORNA section 120. It is operated by
the Department of Justice at the address http://www.nsopr.gov. All 50
States, the District of Columbia, Puerto Rico, and Guam currently
participate in the NSOPW, which provides public access to the
information in their respective sex offender Web sites through single-
query searches on a national site. As noted, participation in the NSOPW
is a required element of SORNA implementation. To satisfy the
requirement under section 118(a) of having ``all field search
capabilities needed for full participation in [the NSOPW],''
jurisdictions' sex offender Web sites must allow searches by name,
county, and city/town, as well as having the zip code and geographic
radius search capacities mentioned specifically in the statute.
Other SORNA requirements relating to sex offender Web sites are
discussed in the remainder of this subpart under the following
headings: mandatory exemptions, discretionary exemptions and required
inclusions, remote communication addresses, and other provisions.
Mandatory Exemptions
Section 118(b)(1)-(3) identifies three types of information that
are mandatorily exempt from disclosure, and section 118(b)(4) gives the
Attorney General the authority to create additional mandatory
exemptions. The limitations of subsection (b) only constrain
jurisdictions in relation to the information made available on their
publicly accessible sex offender Web sites. They do not limit the
discretion of jurisdictions to disclose these types of information in
other contexts. The types of information that are within the mandatory
exemptions from public sex offender Web site disclosure are as follows:
Victim Identity: Section 118(b)(1) exempts ``the identity
of any victim of a sex offense.'' The purpose of this exemption is to
protect victim privacy. So long as the victim is not identified, this
does not limit jurisdictions' discretion to include on the Web site
information about the nature and circumstances of the offense, which
may include information relating to the victim, such as the age and
gender of the victim, and the conduct engaged in by the sex offender
against the victim.
Social Security Number: Section 118(b)(2) exempts ``the
Social Security number of the sex offender.''
Arrests Not Resulting in Conviction: Section 118(b)(3)
exempts ``any reference to arrests of the sex offender that did not
result in conviction.'' As noted, this mandatory exemption, like the
others, only affects the information that may be posted on a
jurisdiction's public sex offender Web site. It does not limit a
jurisdiction's use or disclosure of arrest information in any other
context, such as disclosure to law enforcement agencies for law
enforcement purposes, or disclosure to the public (by means other than
posting on the sex offender Web site) under ``open records'' laws.
Travel and Immigration Document Numbers: The authority
under section 118(b)(4) is exercised to exempt the numbers assigned to
registrants'
[[Page 30224]]
passports and immigration documents. This exemption reflects concerns
that public posting of such information could facilitate identity theft
and could provide a source of passport and immigration document numbers
to individuals seeking to enter, remain in, or travel from the United
States using forged documents or false identities. Like the other
mandatory exemptions, this exemption only affects the information that
may be posted on a jurisdiction's public sex offender Web site. It does
not limit a jurisdiction's use or disclosure of registrants' travel or
immigration document information in any other context, such as
disclosure to agencies with law enforcement, immigration, or national
security functions.
Discretionary Exemptions and Required Inclusions
Section 118(c)(1)-(3) provides three optional exemptions, which
describe information that jurisdictions may exempt from their Web sites
in their discretion. The first of these is ``any information about a
tier I sex offender convicted of an offense other than a specified
offense against a minor.'' The meaning of ``tier I sex offender'' is
explained in Part V of these Guidelines, and the meaning of ``specified
offense against a minor'' is explained in Part IV.D of these
Guidelines. The second and third optional exemptions are, respectively,
``the name of an employer of the sex offender'' and ``the name of an
educational institution where the sex offender is a student.'' As
noted, these exclusions are discretionary. Jurisdictions are free to
include these types of information on their sex offender Web sites if
they are so inclined.
Section 118(c)(4) provides a further optional exemption of ``any
other information exempted from disclosure by the Attorney General.''
This authorization recognizes that there are some additional types of
information that are required to be included in sex offender registries
by section 114, but whose required disclosure through public sex
offender Web sites may reasonably be regarded by particular
jurisdictions as inappropriate or unnecessary. For example, public
access to registrants' remote communication routing addresses (such as
e-mail addresses) presents both risks and benefits. Minimizing the
risks and maximizing the benefits depends on the appropriate design of
the means and form of access. The recommended treatment of such
information is discussed later in this subpart. A number of other types
of required registration information, such as fingerprints, palm
prints, and DNA information, are primarily or exclusively of interest
to law enforcement.
Following the exclusion of types of information that are exempt
from public Web site disclosure on a mandatory basis under section
118(b), that are expressly identified as subject to discretionary
exemptions under section 118(c)(1)-(3), or that will be allowed as
additional discretionary exemptions on the basis of section 118(c)(4),
several core types of information remain whose public disclosure
through the sex offender Web sites has the greatest value in promoting
public safety by enabling members of the public to identify sex
offenders, to know where they are, and to know what crimes they have
committed. These core informational items, which are not within a
mandatory or discretionary exemption, and do have to be included by
jurisdictions on their public sex offender Web sites, are as follows:
The name of the sex offender, including any aliases.
The address of each residence at which the sex offender
resides or will reside and, if the sex offender does not have any
(present or expected) residence address, other information about where
the sex offender has his or her home or habitually lives. If current
information of this type is not available because the sex offender is
in violation of the requirement to register or unlocatable, the Web
site must so note.
The address of any place where the sex offender is an
employee or will be an employee and, if the sex offender is employed
but does not have a definite employment address, other information
about where the sex offender works.
The address of any place where the sex offender is a
student or will be a student.
The license plate number and a description of any vehicle
owned or operated by the sex offender.
A physical description of the sex offender.
The sex offense for which the sex offender is registered
and any other sex offense for which the sex offender has been
convicted.
A current photograph of the sex offender.
Part VI of these Guidelines includes more detailed explanation
concerning the informational items that the list above requires to be
included on the public sex offender Web sites. This list remains
subject to the discretionary authority of jurisdictions under section
118(c)(1) to exempt information about a tier I sex offender convicted
of an offense other than a specified offense against a minor.
Remote Communication Addresses
Public access to or disclosure of sex offenders' remote
communication routing addresses and their equivalent--such as e-mail
addresses and telephone numbers--is discussed separately because the
issue presents both risks and benefits and merits careful handling by
jurisdictions.
On the one hand, appropriately designed forms of access to such
information may further the public safety objectives of sex offender
registration and notification. For example, the operators of Internet
social networking services that serve children may validly wish to
check whether the e-mail addresses of individuals on their user lists
are those of registered sex offenders, so that they can prevent sex
offenders from using their services as avenues for Internet luring of
children for purposes of sexual abuse. Likewise, a parent may
legitimately wish to check whether the e-mail address of an unknown
individual who is communicating with his or her child over the Internet
is that of a registered sex offender, for the same protective purpose.
On the other hand, some forms of public disclosure of this type of
information--such as including sex offenders' e-mail addresses as part
of the information in their individual listings on the sex offender Web
sites, which also include their names, locations, etc.--could raise
serious concerns about unintended consequences and misuse. Posting of
the information in this form could provide ready access by sex
offenders to the e-mail addresses of other sex offenders, thereby
facilitating networking among such offenders through the Internet for
such purposes as: Exchanging information about or providing access to
child victims for purposes of sexual abuse; recruiting confederates and
accomplices for the purpose of committing child sexual abuse or
exploitation offenses or other sexually violent crimes; trafficking in
child pornography; and sharing ideas and information about how to
commit sexual crimes, avoid detection and apprehension for committing
such crimes, or evade registration requirements.
The public safety benefits of public access in this context may be
realized, and the risks and concerns addressed, by not including remote
communication routing addresses or information that would enable sex
offenders to contact each other on the individual public Web
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site postings of registrants, but including on the Web sites a function
by which members of the public may enter, e.g., an e-mail address or
phone number and receive an answer whether the specified address or
number has been registered as that of a sex offender. In the case of a
concerned parent as described above, for example, this could enable the
parent to ascertain that the e-mail address of an individual attempting
to communicate through the Internet with his or her child is the
address of a sex offender, but without providing sex offenders access
to listings showing the e-mail addresses of other persons who may share
their dispositions to commit sexual crimes.
Jurisdictions are accordingly permitted and encouraged to provide
public access to remote communication address information included in
the sex offender registries, in the form described above, i.e., a
function that allows checking whether specified addresses are included
in the registries as the addresses of sex offenders. The registry
management and Web site software that the Justice Department is
developing pursuant to SORNA section 123 will include software for such
a Web site function.
Other Provisions
The final three subsections in section 118 contain additional Web
site specifications as follows:
Subsection (d) requires that sites ``include, to the extent
practicable, links to sex offender safety and education resources.''
Subsection (e) requires that sites ``include instructions on how to
seek correction of information that an individual contends is
erroneous.'' A jurisdiction could comply with this requirement, for
example, by including on its Web site information identifying the
jurisdiction's agency responsible for correcting erroneous information,
and advising persons that they can contact this agency if they believe
that information on the site is erroneous.
Subsection (f) requires that sites include ``a warning that
information on the site should not be used to unlawfully injure,
harass, or commit a crime against any individual named in the registry
or residing or working at any reported address,'' and further provides
that the warning ``shall note that any such action could result in
civil or criminal penalties.''
B. Community Notification and Targeted Disclosures
Section 121(b) of SORNA states that ``immediately after a sex
offender registers or updates a registration * * * the information in
the registry (other than information exempted from disclosure by the
Attorney General) about that offender'' must be provided to various
specified entities and individuals. The requirement that the
information must be provided to the specified recipients
``immediately'' should be understood to mean that it must be provided
within three business days. Cf. SORNA sections 113(b)(2), 117(a)
(equating within three business days and ``immediately'' in relation to
initial registration). The requirement that the information be provided
immediately is qualified by section 121(c), which provides that
recipients described in section 121(b)(6)-(7)--i.e., volunteer
organizations in which contacts with minors or other vulnerable
individuals might occur, and any organization, company, or individual
who requests notification--``may opt to receive the notification * * *
no less frequently than once every five business days.''
These requirements will be discussed in turn in relation to two
groups of recipients--a group of four types of recipients that require
special treatment, followed by suggestions for a uniform approach in
relation to the remaining types of recipients. The four types that
require special treatment are as follows:
National Databases: Section 121(b)(1) states that the
information is to be provided to ``[t]he Attorney General, who shall
include that information in the National Sex Offender Registry or other
appropriate databases.'' The National Sex Offender Registry (NSOR) is a
national database maintained by the Federal Bureau of Investigation
(FBI), which compiles information from the registration jurisdictions'
sex offender registries and makes it available to criminal justice
agencies on a nationwide basis. The current statutory basis for NSOR
appears in SORNA section 119(a). The statute refers to the Attorney
General including the information submitted by jurisdictions in NSOR
``or other appropriate databases'' because some types of registry
information described in SORNA section 114, such as criminal history
information, may be maintained by the FBI in other databases rather
than directly in the NSOR database. In addition, the United States
Marshals Service, which is the lead federal agency in investigating
registration violations by sex offenders and assisting jurisdictions in
enforcing their registration requirements, may establish an additional
national database or databases to help in detecting, investigating, and
apprehending sex offenders who violate registration requirements.
Jurisdictions accordingly can implement the requirement of section
121(b)(1) by submitting to the FBI within three business days the types
of registry information that the FBI includes in NSOR or other national
databases, and by submitting information within the same time frame to
other federal agencies (such as the United States Marshals Service) in
conformity with any requirements the Department of Justice or the
Marshals Service may adopt for this purpose.
Law Enforcement and Supervision Agencies: Section
121(b)(2), in part, identifies as further required recipients
``appropriate law enforcement agencies (including probation agencies,
if appropriate) * * * in each area in which the individual resides, is
an employee or is a student.'' ``Law enforcement agencies'' should be
understood to refer to agencies with criminal investigation or
prosecution functions, such as police departments, sheriffs' offices,
and district attorneys' offices. ``Probation agencies, if appropriate''
should be understood to refer to all offender supervision agencies that
are responsible for a sex offender's supervision. Jurisdictions can
implement the requirement of section 121(b)(2) by making registration
information available to these agencies within three business days, by
any effective means--permissible options include electronic
transmission of registration information and provision of online access
to registration information. Jurisdictions may define the relevant
``area[s]'' in which a registrant resides, is an employee, or is a
student for purposes of section 121(b)(2) in accordance with their own
policies, or may a
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