If you have been convicted of a sex crime, chances are you were ordered to register as a sex offender. Being a registered sex offender is serious. Depending on the tier, you could be on it for the rest of your life and have to adhere to the requirements like reporting your address when you move or your new place of employment when you change jobs. You may have certain restrictions about where you can live, such as being a certain distance away from school and parks. Registered sex offenders cannot go to Disney World. You may not even be able to live in the home with your children.

Life as a registered sex offender is not easy but what happens if you don’t register? The penalties for noncompliance with an order to register per SORA or SORNA can be harsh. It helps to have an experienced attorney who can guide you through the things you need to do after conviction of a sex crime. Failure to register is serious. 

Sex Offender Registration and Notification Act (SORNA)

The Sex Offender Registration and Notification Act, or SORNA, is part of the Adam Walsh Child Protection and Safety Act of 2006. The official citation is Public Law 109-248, 34 U.S.C. 20901 et seq. 

The Act was created “To protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote internet safety, and to honor the memory of Adam Walsh and other child crime victims.”

Title I of this Act is where you will find the SORNA which is also called the Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner Sex Offender Registration and Notification Program in honor of children who died at the hands of sex offenders and Pam Lychner who suffered an attack by a career sexual offender.

SORNA sets the standard for sex offenders to register and applies to all 50 states, The District of Columbia, and U.S. territories. It requires that each jurisdiction maintain a website of its sex offender registry that is accessible by the public. Additionally, each jurisdiction is required to publish information about the registered offenders on that website, however, there is also information that, under SORNA, is protected.

Offenses under SORNA are classified under three tiers and apply to sex offenders meaning individuals who have been convicted of a sex offense. These tiers guide penalties, probation, length of registration in the database, and other actions. Tier I is the least serious and Tier III is the most serious.

  • Tier I sex offender
    • A sex offender whose offense does not classify as a Tier II or Tier III offense
  • Tier II sex offender
    • A sex offender whose offense is less severe than Tier III and whose offense carries a penalty of more than 1 year in prison and
      • (A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:
        • (i) sex trafficking (as described in section 1591 of title 18).
        • (ii) coercion and enticement (as described in section 2422(b) of title 18).
        • (iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a)) 1 of title 18;
        • (iv) abusive sexual contact (as described in section 2244 of title 18).
      • (B) involves—
        • (i) use of a minor in a sexual performance.
        • (ii) solicitation of a minor to practice prostitution; or
        • (iii) production or distribution of child pornography; or
      • (C) occurs after the offender becomes a tier I sex offender.
  • Tier III sex offender
    • A sex offender whose offense carries a penalty of more than 1 year in prison and
      • (A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:
        • (i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18); or
        • (ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years;
      • (B) involves the kidnapping of a minor (unless committed by a parent or guardian); or
      • (C) occurs after the offender becomes a tier II sex offender.

Each jurisdiction and state is required to comply with SORNA and establish a sex offender registration database to the standards set by the Act.

A sex offender is required to register his or her home address, work address, and school address. If they move, change jobs, or make any changes that affect the accuracy of the information in the database, they are required to update it accordingly in each jurisdiction.

If a person knowingly fails to register or update in each of his or her jurisdictions, they can face federal charges. Failure to register is a federal offense. However, they can also face state charges for violation of those laws.

Child Exploitation and Obscenity Section (CEOS)

The Child Exploitation and Obscenity Section (CEOS) is part of the U.S. Department of Justice Criminal Division. Within CEOS is the High Technology Investigative Unit (HTIU) which is considered to be the country’s leading expert in the investigation of high-tech child exploitation crimes and prosecuting child exploitation crimes.

Attorneys for CEOS work with computer specialists with HTIU to investigate and prosecute criminals who violate federal laws on child exploitation. Investigating and prosecuting sex offenders who fail to register pursuant to SORNA also falls under their purview.

New York State Sex Offender Registration Act (SORA)

The New York State Sex Offender Registration Act, or SORA, is the state’s response to the federal SORNA. Under SORA those convicted of sexual offenses are required to register with the State. The Act also makes information about certain sex offenders available to the public so they can be aware of offenders living in their communities.

There are several instances where a person is required to register as a sex offender in New York:

  • If they are convicted of certain sex offenses in New York
  • If they are convicted in another jurisdiction and the offense is equivalent to a sex offense under New York law
  • If they are convicted of a felony and are required to register in the jurisdiction where they were convicted
  • If they are convicted of one or more specific military or federal offenses
  • If they are convicted of one or more registerable offenses on or after the date SORA became effective
  • If they are convicted of a registerable offense and were incarcerated or on probation or under parole supervision on January 21, 1996

Similar to the SORNA, the SORA classifies sex offenders by three levels:

  • Level 1 – Low risk of repeat offense
  • Level 2 – Moderate risk of repeat offense
  • Level 3 – High risk of repeat offense and a threat to public safety exists

Under the SORA the Division of Criminal Justice Services is required to maintain an online subdirectory that includes Level 2 and Level 3 sex offenders. The public is given access to this subdirectory in the interest of public safety. Level 1 offenders are not included in the subdirectory. However, any citizen can call the Sex Offender Registry 800 Information Line to find out if a person is a convicted sex offender who is classified at any level on the registry.

Some Level 2 and Level 3 offenders may not be in the subdirectory due to litigation in federal court. Once they have had their due process hearing and determined their risk level, and if that level is a 2 or 3, then they will be added.

Obligations of Sex Offenders Under SORA

Offenders have several requirements they must comply with under SORA. Failure to do any of these can result in penalties including jail time or prison.

DCJS sends out residence verification annually to registered sex offenders. The offenders are required to sign and return the verification within 10 days of receiving it. This meets the annual reporting requirements. If a sex offender moves to a new address, he or she must provide written notification to the DCJS within 10 days after moving.

Level 1 and Level 2 offenders are required to report to a local police agency in person every 3 years to have a current photo taken. Level 3 offenders must report to a local police agency in person every year to have a current photo taken.

Offenders are required to notify DCJS in writing of any school or institution of higher education they are enrolled in, attending, living at, or employed by. They must report any changes in this status to the DCJS within 10 days of the change.

All levels of offenders are required to provide in writing to DCJS their Internet service providers, email accounts, and internet screen names.

Offenders who are Level 3 and offenders who have a designation of sexual predator are required to personally verify their addresses with law enforcement every 90 days. If a Level 3 offender’s appearance has changed, law enforcement may photograph him or her.

SORA Risk Levels and Designations

Individuals convicted of sex crimes in New York are assigned a risk level. Under the SORA there are three levels of risk:

  • Level 1 – Low risk of repeat offense – Register 20 years if no designation – With a designation must register for life
  • Level 2 – Moderate risk of repeat offense – Register for life
  • Level 3 – High risk of repeat offense and a threat to public safety exists – Register for life

The type and amount of information that is released (as community notification) to the public is determined by the assigned risk level. Between the time when the offender must register and have their risk level hearing, their risk level will be listed as pending. Information on these individuals can only be obtained via the 800 Information Line.

There are also three designations that can be assigned to a convicted sex offender:

  • Sexual predator – A sex offender convicted of a sexual offense that is violent in nature as defined in section 168-a of the Correction Law and suffers from a personality disorder or mental abnormality that makes him or her likely to commit predatory sexually violent offenses.
  • Sexually violent offender – A sex offender convicted of a sexual offense that is violent in nature as defined in section 168-a of the Correction Law
  • Predicate sex offender – A sex offender convicted of a sexual offense and that person has been previously convicted of a sex offense as defined in section 168-a of the Correction Law

Penalties for Failure to Register

Penalties for failure to register under the SORNA can be harsh. Per 18 U.S. Code § 2250 – Failure to Register. These penalties include:

  • Sex offender knowingly fails to register or update his or her registration – Maximum 10 years prison and/or fines
  • Sex offender knowingly fails to provide information relating to intended travel in foreign commerce and tries to follow through with the travel plans or does follow through with the travel plans in foreign commerce – Maximum 10 years prison and/or fines.

New York’s SORA has its own set of penalties for failure to register. They are outlined in New York Correction Law Section 168-T.  These penalties include:

  • Any sex offender who fails to register or verify their information in the required manner and within the required timeframe – First Offense Conviction – Class E Felony – Possible revocation of parole or revocation of probation and a possible sentence of up to 4 years.
  • Any sex offender who fails to register or verify their information in the required manner and within the required timeframe – Second or Subsequent Offense Conviction – Class D Felony – Possible revocation of parole or revocation of probation – Minimum 1 year in prison to Maximum 5 years in prison and/or Maximum fine $250,000 and/or Probation Minimum 1 year to Maximum 5 years
  • Any sex offender who violates New York Correction Law Section 168-V (prohibited from being employed, operating, or dispensing goods for sale at retail on a motor vehicle engaged in retail sales of frozen desserts) – First Offense Conviction – Class A Misdemeanor –  Minimum 6 months prison to Maximum 1-year prison and/or Fine Maximum $100,000 and/or Probation Maximum 5 years
  • Any sex offender who violates New York Correction Law Section 168-V (prohibited from being employed, operating, or dispensing goods for sale at retail on a motor vehicle engaged in retail sales of frozen desserts) – Second or Subsequent Offense Conviction – Class D Felony – Minimum 1 year in prison to Maximum 5 years in prison and/or Maximum fine $250,000 and/or Probation Minimum 1 year to Maximum 5 years

Defenses for Failure to Register

There are some possible defenses for failure to register with SORA or SORNA. 

  • Registration is correct
  • Offender is moving but has not moved yet
  • Someone filed a false report that the offender moved without updating or did not register
  • Offender did register but the police or state misplaced the registration

There may be other defenses depending on the case and the person, but for the most part, New York does not recognize most defenses for failure to register.

If you have been charged with failure to register in New York, you need an attorney who is tough and has experience in dealing with these often ambiguous cases. You need attorney Igor Litvak of the Litvak Law Firm at (718) 989-2908. Call today for your free consultation. Let him put his experience to work for you protecting your rights.