RD80 - Sex Offenders in Virginia


Executive Summary:
In May 2005, following a series of national incidents involving sex offenders and the deaths of children, Delegate Robert F. McDonnell requested the Virginia State Crime Commission to examine possible policy changes to improve the registration, commitment and monitoring of sex offenders in Virginia. Specifically, the letter requested the Crime Commission appoint a Task Force to study the following issues regarding Virginia’s Sex Offender and Crimes Against Minors Registry (“Sex Offender Registry”):

(i) Completeness of records for each violation;
(ii) Compliance with the Registry;
(iii) "Code of Virginia" provisions for notification requirements; and,
(iv) Mechanisms to ensure public and law enforcement notification of locations for all registered offenders.

Crime Commission Chairman, Senator Kenneth W. Stolle, formed a statewide Sex Offender Task Force to assist the Commission in examining the study issues. Senator Stolle also appointed Delegate Robert F. McDonnell and Delegate David B. Albo to co-chair the Task Force. The Task Force was composed of legislators from the General Assembly, in addition to, representatives from the victim/witness community, the mental health community, the Office of the Attorney General of Virginia, the Virginia Association of Commonwealth’s Attorneys, law enforcement and state agency directors overseeing programs and services impacting sex offenders.

To efficiently handle the magnitude of information, the Sex Offender Task Force divided into two subcommittees: The Sex Offender Civil Commitment and Probation Reform Sub-Committee and the Sex Offender Registry and Sentencing Reform Sub-Committee. The Sub-committees met on September 22, 2005, and the full Sex Offender Task Force convened on four occasions: June 7, 2005; September 22, 2005; October 25, 2005; and, November 30, 2005.

As a result of the study effort, the Sex Offender Task Force made recommendations to improve the registration, commitment and monitoring of sex offenders in Virginia. These recommendations, as follows, were approved by the Virginia State Crime Commission:

A. Enhanced Penalty Recommendations

Based on the current sentencing structure, the nature of the sex offenses and the high recidivism rate for sex offenders, the Crime Commission voted to recommend the following enhanced penalty and probation/monitoring of sex offenders:

Recommendation #1

Amend the "Code of Virginia" to require a minimum, mandatory 25 year sentence for a first time conviction of the following serious sex offenses when the victim is under the age of 13:
-Forcible Sodomy;
-Object Sexual Penetration; and,
-Rape.

Recommendation #2

Amend the "Code of Virginia" to allow for a mandatory minimum of 3 years supervised probation with electronic monitoring for the following sex offenses:
-Forcible Sodomy (§ 18.2-67.1);
-Object Sexual Penetration (§ 18.2-67.2);
-Rape (18.2-61);
-Kidnapping with Intent (§ 18.2-48(i) & (iii));
-Aggravated Sexual Battery (§ 18.2-67.3);
-Carnal Knowledge (§ 18.2-63), and,
-Indecent Liberties (§ 18.2-370).

Recommendation #3

Amend the "Code of Virginia" to provide for mandatory unsupervised probation for the duration of the sentence allowed for the following sex offenses:
-Forcible Sodomy (Life);
-Object Sexual Penetration (Life);
-Rape (Life);
-Kidnapping with Intent (Life);
-Aggravated Sexual Battery (20 years);
-Carnal Knowledge (10 years); and,
-Indecent Liberties (10 years).

B. Sex Offender Registry Recommendations

Based on the study effort, the Crime Commission made the following recommendations concerning the Sex Offender Registry by subject area:

Enhanced Penalties

Recommendation #4

Amend "Code of Virginia" § 9.1-904 to increase the frequency of re-registration timeframes for sex offenders from 1 year to 180 days for a conviction of § 18.2-472.1 (Failure to Register); and, increase the frequency of re-registration timeframes for violent sex offenders from 90 days to monthly for a conviction of § 18.2-472.1.

Recommendation #5

Amend "Code of Virginia" § 9.1-908 to increase the duration of a sex offender’s registration upon conviction of § 18.2-472.1 to 10 years from the date of last § 18.2-472.1 conviction.

Recommendation #6

Amend "Code of Virginia" § 9.1-909 to modify a sex offender’s ability to petition for relief from registration or re-registration as sex offender upon conviction of a § 18.2-472.1 violation; must wait 5 years from date of last § 18.2-472.1 violation to petition for relief.

Recommendation #7

Amend "Code of Virginia" § 9.1-910 to increase, upon conviction of § 18.2-472.1 violation, the duration a sex offender must wait to petition to have his information removed from the registry to 10 years from date of the last § 18.2-472.1 conviction.

Recommendation #8

Amend "Code of Virginia" § 46.2-348 to add the providing of false information in order to obtain a driver’s license or ID card for purposes of proof of residency for the Sex Offender Registry to be penalized as a Class 4 Felony.

Recommendation #9

Amend "Code of Virginia" § 18.2-472.1 related to convictions of a first time violation of the Registry requirements:

-For violent sex offenders who are convicted of a 1st offense of failure to register, require mandatory electronic monitoring for two years as part of each sentence; and,

-For sex offenders who are convicted of a 1st offense of failure to register, require a mandatory minimum electronic monitoring for six months as part of each sentence.

Amend "Code of Virginia" § 18.2-472.1 related to second and subsequent convictions of the Registry requirements. Specifically,

-For violent sex offenders convicted of a 2nd or subsequent offense:
(1) Increase the penalty from a Class 6 felony to a Class 5 felony;
(2) Require mandatory electronic monitoring for five years as part of each sentence.

-For sex offenders convicted of a 2nd or subsequent offense:
(1) Increase the penalty for 2nd or subsequent conviction from a Class 1 misdemeanor to a Class 6 felony;
(2) Require a mandatory electronic monitoring for two years as part of each sentence.

Limitations on Offenders

Recommendation #10

Amend "Code of Virginia" § 18.2-370.2 to:
-Add schools, day care service or child minding service to the locations where loitering by certain sex offenders is prohibited within 100 feet; and,
-Require the court as part of the sentence for a conviction of § 18.2-472.1 to prohibit the offender from loitering if his original offense was prohibited under this statute.

Recommendation #11

Add "Code of Virginia" § 18.2-370.3 to:
-Prohibit persons convicted of Rape, Forcible Sodomy and Object Sexual Penetration against a victim 13 or younger from working on school property or child day center property;

-Make a violation of this section a Class 6 felony; and,

-To grant civil immunity to employers, schools and child day centers, unless they had actual knowledge that the employee was a serious sex offender.

Recommendation #12

Add "Code of Virginia" § 18.2-370.3 to:
-Prohibit a person, who has been convicted of a sex offense that would prohibit him from loitering near a school (a violation of § 18.2-370.2), establishing residence within 500 feet of a school or child day center;

-Allow a person to continue to live in a residence he inhabited prior to conviction for such a sex offense, if a new school or child day center is built nearby; and,

-Make a violation of this section a Class 6 felony.

New Offenses

Recommendation #13

Amend "Code of Virginia" § 9.1-902 to:
-Require a person convicted of a first offense of child pornography (§ 18.2-374.1:1) to register as a sex offender;

-Require a person convicted of a burglary with intent to commit a felony offense enumerated in § 9.1-902 (§ 18.2-91) to register as a sex offender; and,

-Require a person convicted in a foreign country to register as a sex offender/violent sex offender for a required offense.

Murder of a Minor

Recommendation #14

Amend "Code of Virginia" § 9.1-904 to require a person registered for murder of a minor to re-register the same as a violent sex offender.

Recommendation #15

Amend "Code of Virginia" § 9.1-908 to require a person registered for murder of a minor to register for life.

Recommendation #16

Amend "Code of Virginia" § 9.1-910 to prohibit a person registered for the murder of a minor from having his information removed from the registry.

Recommendation #17

Amend "Code of Virginia" § 18.2-472.1 to provide persons registered for the murder of a minor to be designated as a violent sex offender for penalties for failure to register.

Recommendation #18

Amend "Code of Virginia" § 9.1-902 to require an offender to register for a conviction of a murder of a minor when:
-the victim is less than 15 years of age; or,

-the victim is at least 15 years of age, but less than 18 years of age, and the murder is related to a violation listed in § 9.1-902.

Mandatory Offender Information

Recommendation #19

Amend "Code of Virginia" § 9.1-903 to include the following additional mandatory registration requirements:
-Place of employment as a new requirement;
-Collection of a DNA sample, if not present in LIDS Database;
-Provision of a physical address (no longer accept P.O. Boxes to satisfy the address requirement);
-Offender submit to having his/her photograph taken; and,
-New registration for any changes in employment status.

Recommendation #20

Amend "Code of Virginia" § 9.1-904 to require the offender to submit to a law enforcement agency to have his photograph taken every two years.

Timelines for Notification

Recommendation #21
Amend "Code of Virginia" § 9.1-903 to:
-Require offenders to re-register within 3 days upon a change of address or a change in employment status;

-Require law enforcement agencies to submit registration information to the VSP forthwith;

-Require law enforcement agencies to submit registration information to the VSP forthwith at time of conviction; and,

-Require parole officers and probation officers to notify the VSP forthwith for change of address information regarding an offender of which they become aware.

Recommendation #22

Amend "Code of Virginia" § 9.1-905 to require new residents and non-resident sex offenders to register and complete change of address information within three days.

Recommendation #23

Amend "Code of Virginia" § 9.1-906 to:
-Require students enrolled or employed at institutions of higher education to register with local law enforcement within three days of enrollment or employment; and,

-Require the local law enforcement agency to forthwith provide the information to the VSP.

Public Notification

Recommendation #24

Amend "Code of Virginia" § 9.1-913 to allow all information on all sex offenders, not just violent sex offenders available to the public via the Internet.

Recommendation #25

Amend "Code of Virginia" § 9.1-914 to add institutions of higher learning to those entities eligible to receive automatic notification of registration information.

Recommendation #26

Amend "Code of Virginia" § 9.1-918 to clarify what is not misuse of public registry information.

Recommendation #27

Amend "Code of Virginia" § 22.1-79 to require the school boards to ensure that all public schools to register for automatic community notification from the Department of State Police.

Recommendation #28

Amend "Code of Virginia" § 22.1-79.3 to:
-Require the school boards to develop and implement policies to provide parents with information regarding the operations of the Sex Offender Registry; and,

-Require the school boards to develop protocols for the release of a child to any person other than his/her parent or legal guardian.

Governmental Notifications

Recommendation #29

Add a new section to the "Code of Virginia" titled § 16.1-249.1 to require juvenile jail facilities to register and forthwith furnish registration information to the State Police (VSP) upon receipt of a person required to register.

Recommendation #30

Add a new section to the "Code of Virginia" titled § 16.1-278.1:01 to require the Department of Juvenile Justice to register and forthwith furnish registration information to the VSP upon receipt of a person required to register.

Recommendation #31

Add a new section to the "Code of Virginia" titled § 16.2-278.1:02 to require the Department of Juvenile Justice to register and forthwith furnish registration information to the VSP upon the release of a person required to register.

Recommendation #32

Add a new section to the "Code of Virginia" titled § 53.1-23.1 to require DOC to register and forthwith furnish registration information to the VSP upon receipt of a person required to register.

Recommendation #33

Amend "Code of Virginia" § 53.1-116.1 to require jails to register and forthwith furnish registration information to the VSP upon the release of a person required to register.

Recommendation #34

Add a new section to the "Code of Virginia" titled § 53.1-116.1:01 to require jails to register and forthwith furnish registration information to the VSP upon the receipt of a person required to register.

Recommendation #35

Amend "Code of Virginia" § 53.1-160.1 to require DOC to register and forthwith furnish registration information to the VSP upon release of a person required to register.

State Police Responsibilities

Recommendation #36

Amend "Code of Virginia" § 9.1-907 to require the VSP to physically verify all registration information and change of address within 30 days and semi-annually thereafter.

Recommendation #37

Amend "Code of Virginia" § 19.2-390.1 to require the Superintendent of the VSP to staff and operate Virginia’s Sex Offender and Crimes against Minors Registry.

Training

Recommendation #38

Amend "Code of Virginia" § 9.1-102 to require the Department of Criminal Justice Services to develop new training standards for all law enforcement, DOC and Jails regarding investigative, registration and dissemination of information pertaining to the Sex Offender Registry.

Database Issues

Recommendation #39

Amend "Code of Virginia" §§ 2.2-3703 and 2.2-3802 to exempt provisions of the Sex Offender Registry from Virginia’s Freedom of Information Act (FOIA) unless specified for public dissemination.

Recommendation #40

Amend "Code of Virginia" § 9.1-921 to exempt Sex Offender Registry information in databases operated by DOC, DJJ, the Virginia Compensation Board and VSP from the Virginia Information Technology Agency (VITA).

Recommendation #41

Amend "Code of Virginia" § 23-2.2:1 to require Institutions of Higher Learning to submit enrollment information in an electronic format to the State Police for comparison with State and Federal Sex Offender Registry files.

Recommendation #42

Amend "Code of Virginia" §§ 46.2-323; 46.2-324; 46.2-330; 46.3-345 to require the Department of Motor Vehicles (DMV) to submit the following information in an electronic format to the VSP for comparison with State and Federal Sex Offender Registry files:
-Driver’s license information;
-Change of address information;
-Renewal information; and,
-Identification card information.

Recommendation #43

Amend "Code of Virginia" § 53.1-115.1 to require local and regional jails to submit daily prisoner jail information to the Compensation Board in an electronic format.

Recommendation #44

Amend "Code of Virginia" § 53.1-121 to require the Sheriff to submit daily prisoner information to the Compensation Board in an electronic format.

Miscellaneous

Recommendation #45

Amend "Code of Virginia" § 9.1-907 to require local law enforcement agencies to notify the State Police when initiating a Sex Offender Registry investigation.

Recommendation #46

Amend "Code of Virginia" § 9.1-909 to provide non-residents with an avenue for relief from the 90 day registration requirement.

C. Civil Commitment of Sexually Violent Predators Recommendations

Based on the study effort, the Crime Commission recommended the following legislative changes to the Involuntary Civil Commitment laws and processes:

Recommendation #47

Allow the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), through an emergency enactment bill, to contract with the Department of Corrections (DOC) for assistance with monitoring and supervising sexually violent predators who are on conditional release.

Recommendation #48

Amend "Code of Virginia" § 37.2-903 (C) to designate the Static-99 as the screening instrument for SVP identification; a score of 4 or higher (moderate to high) should be used as the criteria for determining the eligibility for further assessment by the CRC.

Recommendation #49

Amend "Code of Virginia" § 37.2-900 to include aggravated sexually battery of any age victim as an eligible predicate offense for civil commitment.

Recommendation #50

Amend "Code of Virginia" § 37.2-900 to include a violation of § 18.2-63, carnal knowledge, as a SVP eligible predicate offense.

Recommendation #51

Amend "Code of Virginia" § 37.2-900 to include kidnapping with intent to defile or rape (§ 18.2-48 (i) and (iii)) as predicate SVP offenses.

Recommendation #52

Amend "Code of Virginia" § 37.2-900 to include attempts of the following predicate sex offenses as eligible for SVP screening and commitment:
-Forcible Sodomy (§ 18.2-67.1);
-Object Sexual Penetration (§ 18.2-67.2);
-Rape (§ 18.2-61);
-Kidnapping with Intent (§ 18.2-48(i) & (iii));
-Aggravated Sexual Battery (§ 18.2-67.3); and,
-Carnal Knowledge (§ 18.2-63).

Recommendation #53

Amend "Code of Virginia" §§ 37.2-908(c) and 37.2-910 to require that conditionally released SVPs be subject to GPS monitoring as part of both the court ordered treatment programs.

Recommendation #54

Amend "Code of Virginia" § 19.2-299 to require a Pre-Sentence Investigation Report (PSI), with national background check, be completed for all cases where the defendant is convicted of an offense eligible for civil commitment pursuant to § 37.2-900.

Recommendation #55

Amend "Code of Virginia" § 37.2-908 to allow the Office of the Attorney General of Virginia to allow continuances for good cause shown.

Recommendation #56

Amend "Code of Virginia" §§ 37.2-169.3, 37.2-904; 37.2-905 to allow the CRC to be statutorily charged with providing a review of a defendant found incompetent to stand trial, who the DHMRSAS deems eligible for commitment as a SVP.