Texas law Allows Removal/Avoidance of Sex Registration for Youthful, Non-Violent Consent Based Sex
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Former President George W. Bush in July 2006 signed into law the Adam Walsh Child Protection and Safety Act. Title I of this act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry, including sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. This includes juveniles convicted, or adjudicated as delinquent in juvenile court, who are 14 years of age or older and who have been convicted of an offense either more serious or similar to federal aggravated sexual assault. It is this juvenile registration issue that has caused many states, including Texas, to have serious reservations about complying with SORNA.
States had a deadline of July 27, 2011 to comply with all the SORNA requirements of the Walsh Act. CNN reported on July 28, 2011 that only 14 states, 9 Native American tribes and the Territory of Guam has “substantially implemented” these requirements. The cable news network, however, pointed out that “last-minute submissions were pouring into the Office of Sex Offender, Monitoring, Apprehending, and Tracking, known as SMART, OFFICE.”
The belated rush to comply with SORNA was motivated by the prospect of losing a 10 percent cut in “federal justice assistance funding.” While many state lawmakers and governors publicly decry any federal intervention in state affairs, they consistently line up to the federal funding mill with their hands out to get those “federal dollars.” This is especially true when it comes to federal subsidies for state criminal justice programs, such as law enforcement, prison management, and local crime labs. Not Texas. The state refused to comply with SORNA’s strict requirement, with Texas officials pointing to the $38.7 million it would cost to implement SORNA compared to the $1.4 million it would lose in federal funding for failure to do so. We have no independent way of knowing if the numbers are correct, but others states, like Ohio, have registered the same complaint, citing not only the millions it spent to implement SORNA but the additional millions the State has spent defending lawsuits challenging the law.
Not only did Texas not buy all into the Adam Walsh Act, and its SORNA requirements, the state legislature in this past session enacted what has become known across the country as the “Romeo and Juliet” laws. In Texas, this law allows those involved with a person under 17 to avoid sex offender registration and the horrific consequences attached to it. These “Romeo and Juliet” offenders, Jordan Smith wrote in the Austin Chronicle last May, encompass youthful offenders “involved with a person who is at least 15, and not more than four years their junior.” Under this retroactive legislation, these offenders have a chance to avoid registration upon a finding by the court that the person poses no threat to society.
The Texas Department of Public Safety reported last January that the state’s sex offender registry has information on 64,000 individuals which, according to the Chronicle, grows by 100 individuals each week, including some as young 10 years of age and more than 1,000 under the age of 14 (according to Citizens for Change, America).
Registered sex offenders are a growing underclass, and the registration laws which have placed them in that underclass beg serious legislative reform, including the Adam Walsh Act. The Center for Missing and Exploited Children has reported that there are, on average, 234 registered sex offenders per 100,000 residents in the United States, a total of 723,000 with the two top states, California and Texas, having nearly 200,000 of them.
The Texas Legislature and Gov. Rick Perry, who signed the Romeo and Juliet law this past June, are to be commended for this action because it will reduce the state’s sex offender registry of the people who don’t belong there. Mary Sue Molnar, founder of Texas Voices, an organization committed to reforming sex offender laws, told the Austin Chronicle, via email, that the Romeo and Juliet law is “a good start at addressing a huge, over-blown, ineffective registry system [that] causes more harm than good.” A similar sentiment was expressed to CNN by Susan Frederick, a federal affairs counsel for the National Conference of State Legislature, when she pointed out that 350 laws have been enacted in 48 states “related to residency restrictions, sentencing and monitoring sex offenders.”
“States are very sympathetic to the need to supervise and penalize registered sex offenders. There’s no softness on that position,” Frederick told CNN. “But any time you’re going to be collecting and cataloging information on more people more often, that comes at a high cost. The question is whether it’s worth it.”
Texas’ sex offender registration is one of the toughest in America with a host of problems and inequities associated with it. The Houston Chroniclereported last year that there were 3,600 individuals in the DPS registry who were put there as juveniles. The newspaper chronicled some of the horror stories faced by these individuals to get de-registered. For example, Dale Portwood was twelve years old when he “inappropriately touched” a 7 year old, and he was forced to spend a decade as a registered as a “sex offender.” Texas’ sex offender registration laws would allow kids as young as 5 or 6 years of age to be registered as “sex offenders” for playing “doctor and nurse” if it was not for the fact that the minimum age for criminal prosecution in this state is 10.
While we understand the need for states to protect themselves from violent child sex predators, we feel laws that require everyone, no matter the age or circumstances of the offense, to register as sex offenders are overkill. Perhaps we are of the old-fashioned and believe that society can best protect itself from crime, even child sex offenses, with specific criminal sanctions, not with lifetime “sex offender registration” or preventive civil commitment upon release from prison. The strange contradiction is that many of “sex offenders” received leniency because of plea agreements made with law-and-order prosecutors who, at the time, saw some mitigating circumstances that demanded consideration. Now these same prosecutors give unconditional political support to these draconian sex offender registration and civil commitment laws.
Of course, these prosecutors have not only been swayed but intimidated by the forces behind the Megan and Jessica registration laws. Laura Ahearn, executive director of Parents for Megan laws and the Crime Victims Center repeated the misleading but popular mantra to the Houston Chronicle: “Once a juvenile introduces violence into sexual behavior, it’s hard to rehabilitate.” These kinds of “sound bites” are thrown out for public consumption and as a tool of political intimidation without any factual basis. We strongly suspect that Ahearn does not have any credible research data to support her theory that juveniles are “hard to rehabilitate” once they commit a violent sex offense—like 12-year-old Dale Portwood inappropriately touching a 7-year-old. Individuals like Ahearn throughout history have staunchly endorsed concepts without any factual basis—like standing on the shore line to warn Columbus that he would sail off the flat end of the earth.
Rehabilitation of juvenile sex offenders is indeed hard when they are forced to register as a “sex offender” and attend school with classmates who consider them “child molesters.” What chance does an 18-year-old senior in high school, who had consensual sexual intercourse with his 16-year-old sophomore girlfriend after Friday’s big game and convicted of “sexual assault of a child” and forced to register as a “sex offender,” have of getting a job? There’s no way to explain to a prospective employer or a new neighbor that he just “had sex” with a girlfriend. He is a “child molester” for all practical purposes.
Sex offender registration is the death knell for any meaningful hope of individual rehabilitation. It destroys lives, it ruins future, and, sadly, it does absolutely nothing to protect society from violent child sex predation. Fortunately, the Romeos and Juliets in the State of Texas now have a chance to avoid the life-damaging hardships of “sex offender registration”—and since the new law signed into effect by Gov. Perry is retroactive, any Romeo and Juliets currently in the DPS registry will be able to petition for de-registration.
S.B 198: Act and Analysis
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization