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Can Juveniles Be Listed On Michigan’s Sex Offender Registry?

| Nov 29, 2021 | Juvenile Justice, Sex Offenses |

 

Adults and juvenile delinquents can both be prosecuted in the State of Michigan for sex crimes and punished according to law.  For adults, a conviction can mean being listed on Michigan’s Sex Offender Registry under substantial rules and conditions to protect the public.  Are juveniles required to register if they are adjudicated or convicted of crimes?  The answer is “maybe”, depending on the age of the juvenile and the type of offense.

 

WHEN IS JUVENILE SEX OFFENDER REGISTRATION REQUIRED?

Michigan requires registration of a juvenile delinquent for certain sex offenses if the following criteria are met:

  • For an order of disposition entered under MCL 712A.18 in a court proceeding that is open to the general public, BOTH of the following must apply:
    • “The individual was 14 years of age or older at the time of the offense.” MCL 28.722(a)(iii)(A).
    • “The order of disposition is for the commission of an offense that would classify the individual as a tier III offender.” MCL 28.722(a)(iii)(A).
  • For an order of disposition or other adjudication in a juvenile matter in another state or country, BOTH of the following must apply:
    • “The individual was 14 years of age or older at the time of the offense.” MCL 28.722(a)(iv)(A).
    • “The order of disposition or other adjudication is for the commission of an offense that would classify the individual as a tier III offender.” MCL 28.722(a)(iv)(A).

A TIER III OFFENDER must register FOR LIFE and must report to law enforcement FOUR TIMES PER YEAR to verify their address.  Even a juvenile over age 14 could be compelled to register for the rest of his or her life if a serious sex crime is committed.  The following criminal offenses can cause TIER III status for the purposes of juvenile registration:

  • MCL 750.338 – Gross Indecency between males where the victim was under 13 years old.
  • MCL 750.338a – Gross Indecency between females where the victim was under 13 years old.
  • MCL 750.338b – Gross Indecency between a male and female where the victim was under 13 years old.
  • MCL 750.349 – Kidnapping where sexually abusive activity was committed against a minor.
  • MCL 750.350 – Kidnapping committed where victim was under 14 years old.
  • MCL 750.520b – First Degree Criminal Sexual Conduct UNLESS the victim consented to the conduct, was at least 13 years old but not yet 16 years old, and not more than 4 years younger than the victim.
  • MCL 750.520c – Second Degree Criminal Sexual Conduct IF the victim was under 13 years old.
  • MCL 750.520d – Third Degree Criminal Sexual Conduct UNLESS the victim consented to the conduct, was at least 13 years old but not yet 16 years old, and not more than 4 years younger than the victim.
  • MCL 750.520e – Fourth Degree Criminal Sexual Conduct IF the victim was under 13 years old and the offender was 17 years old or older.
  • MCL 750.520g(1) – Assault w/ Intent to Commit Sexual Penetration UNLESS the victim consented to the conduct, was at least 13 years old but not yet 16 years old, and not more than 4 years younger than the victim.
  • MCL 750.520g(2) – Assault w/ Intent to Commit Sexual Conduct IF victim was under 13 years old.
  • Any attempt or conspiracy to commit a Tier III offense.
  • Any offense substantially similar to a Tier III offense under the law of any state, country, tribal law, military law, or a law specifically enumerated in 42 USC 16911.

The age of consent for sexual activity in Michigan is 16 years old.  This means that if a 16-year old boyfriend has “consensual sex” with his 15-year old girlfriend, then statutory rape has occurred because the 15-year old is unable to legally consent to sexual intercourse and a crime was committed.  However, you should note that there is a safe-harbor provision for juveniles adjudicated or convicted of CSC-1st degree, CSC-3rd degree and assault with intent to commit sexual penetration.  On July 1, 2011, the sex offender registry law changed to where a person under 18 years old who has “consensual” penetrative intercourse with an individual aged 13 to 16 and is within 4 years of age of the victim would not be required to register if convicted.  Known as the “Romeo and Juliet Law”, this legal provision was added to provide a break for non-violent juvenile offenders that were not engaged in forcible rape conduct.  While it is still a crime to have sex with anyone under age 16 and can still be punished by a fine or incarceration, the juvenile offender would not have to register as a sex offender for the rest of his or her life.

If the juvenile is age 13 or younger at the time of the offense, then the juvenile is not required to register no matter what the offense is. However, if the juvenile is at least 14 years old at the time of the offense, then registration with be required ONLY if the offense was a Tier III offense.  Juveniles under age 18 cannot be registered if the crime was only a Tier I or Tier II offense.  However, if ordered to register for the Tier III offense, the juvenile will have to register for the rest of his or her life.

If the juvenile 14 years or older at the time of the offense was designated or tried as an adult and convicted of a Tier III violation, then his or her registration can be listed on the Michigan State Police’s public internet website for anyone to find and locate.  However, if the juvenile is registered solely because the listed offense was adjudicated under juvenile delinquency proceedings in Michigan and was not a case designated to be tried in the same manner as an adult, then the individual is only listed on the non-public registry for law enforcement and NOT on the public internet website.  MCL 28.728(4)(a).  Likewise, a juvenile who is registered solely because he or she was the subject of an order of disposition or other adjudication in a juvenile matter in another state or country is only listed on the non-public registry for law enforcement and NOT on the public internet website.  MCL 28.728(4)(b).

 

CAN JUVENILES GET OFF THE SEX OFFENDER REGISTRY?

It may be possible for individuals convicted as juveniles to petition the court for removal from the Sex Offender Registry.  A Tier III Offender may complete MC 406a (Petition to Discontinue Sex Offender Registration) and file it in the court in which the individual was convicted of committing the listed offense for an order allowing him or her to discontinue registration on the basis of being adjudicated as a juvenile under MCL 28.728c(2). However, ALL of the following must apply:

  • “The petitioner is required to register based on an order of disposition entered under [MCL 712A.18]… that is open to the general public…”. MCL 28.728c(13)(a).
  • “Twenty-five or more years have elapsed since the date of his or her adjudication for the listed offense or from his or her release from any period of confinement for that offense, whichever occurred last.” MCL 28.728c(13)(b).
  • The petitioner has not been convicted of any felony since the date of his or her adjudication for the listed offense or from his or her release from confinement for that offense, whichever occurred last. MCL 28.728c(13)(c).
  • The petitioner has not been convicted of any listed offense since the date of his or her adjudication for the listed offense or from his or her release from confinement for that offense, whichever occurred last. MCL 28.728c(13)(d).
  • “The petitioner successfully completed his or her assigned periods of supervised release, probation, or parole without revocation at any time of that supervised release, probation, or parole.” MCL 28.728c(13)(e).
  • “The petitioner successfully completed a sex offender treatment program certified by the United States attorney general under 42 USC 16915(b)(1), or another appropriate sex offender treatment program. The court may waive the requirements of this subdivision if successfully completing a sex offender treatment program was not a condition of the petitioner’s confinement, release, probation, or parole.” MCL 28.728c(13)(f).

A petitioner who was adjudicated as a juvenile and was less than 14 years of age at the time of the offense but was subject to registration under older laws is eligible to petition the court for removal from the registry at any time.  MCL 28.728c(15)(a).

However, removal is not automatic and is discretionary for the court.  Before making a decision based on a petition for an offender where more than 25 years have passed for a juvenile adjudication, the court must consider all of the following in determining whether to allow the individual to discontinue registration:

  • “The individual’s age and level of maturity at the time of the offense.” MCL 28.728c(11)(a).
  • “The victim’s age and level of maturity at the time of the offense.” MCL 28.728c(11)(b).
  • “The nature of the offense.” MCL 28.728c(11)(c).
  • “The severity of the offense.” MCL 28.728c(11)(d).
  • “The individual’s prior juvenile or criminal history.” MCL 28.728c(11)(e).
  • “The individual’s likelihood to commit further listed offenses.” MCL 28.728c(11)(f).
  • “Any impact statement submitted by the victim.” MCL 28.728c(11)(g).
  • “Any other information considered relevant by the court.”  MCL 28.728c(11)(h).

The court shall not allow the individual to discontinue registration if the court determines that the individual is a continuing threat to the public.  The individual only has one opportunity to petition the court for removal.  If the petition was denied, the individual may not file a petition again at any time in the future asking for removal.  MCL 28.728c(4).

 

HOW CAN A JUVENILE AVOID REGISTRATION IN THE FIRST PLACE?

If a juvenile is accused of a Tier III sex crime and is over 14 years old, the most important thing that he or she should do is get skilled and effective legal counsel that can help avoid the negative consequences that come with being placed on the sex offender registry.  A juvenile can avoid registration if he or she obtains any of the following results during adjudication proceedings:

  • The juvenile obtains an acquittal (“not guilty” verdict) from a judge or jury at trial.
  • The prosecutor dismisses the charges against the juvenile ahead of trial.
  • The juvenile accepts a plea bargain that reduces the charged offense to a Tier I or Tier II violation, meaning that no registration is required.
  • The juvenile’s case is transferred to a diversionary program where the end result for completion is no disposition/conviction and, therefore, no registration.
  • The juvenile’s case is placed on the consent calendar and resolved informally which also leads to no disposition/conviction and, therefore, no registration.

It is important to have a good lawyer in the very beginning to get the best possible result in your case.  Otherwise, you could be stuck dealing with sex offender registry for 25 years or longer before you even get the first opportunity to seek removal from the list.

If you or a loved one have any questions about Michigan’s Sex Offender Registry or need legal representation in a juvenile or adult criminal proceeding, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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