How Can I Get My Name Removed From Michigan’s Sex Offender Registry?

 

The laws and rules surrounding Michigan’s sex offender registration are some of the toughest laws in the country.  There are strict regular reporting requirements for registrants depending on their tier level, and they must also report immediately after a change in residency, employment and schools.  Even worse, the registry is public and anyone with an internet connection can look up anyone listed upon it anywhere from 15 years to life.  This listing can impact opportunities for housing, applying for work, enrolling in higher education or even going to certain locations and seeing certain people.

It is possible to petition the court to get off of Michigan’s sex offender registry early?  This blog will explain some of the situations where this may be possible.

Before explaining the viability of removal, it is important to understand that an offender will be listed on one of three different tiers on the registry which is determined by the type of offense he or she was convicted of.

• TIER I OFFENDERS are listed on a non-public registry, must register FOR 15 YEARS, and must report to law enforcement ONCE PER YEAR to verify their address. This is for the lowest level sex offenses such CSC-4th degree if the victim was 18 or older, possession of child sexually abusive material, and unlawful imprisonment of a minor.

• TIER II OFFENDERS are listed on a public registry, must register FOR 25 YEARS, and must report to law enforcement TWO TIMES PER YEAR to verify their address. This is for intermediate level sex offenses such as distributing child sexually abusive material, accosting a minor for immoral purposes, and CSC-2nd degree or 4th degree if the victim was at least 13 years old.

• TIER III OFFENDERS are listed on a public registry, must register FOR LIFE, and must report to law enforcement FOUR TIMES PER YEAR to verify their address. This is for the most serious sex offense such as nonconsensual CSC-1st degree and CSC-3rd degree, most sex offenses against victims under 14 years old, and kidnapping of a minor.

 

TIER I OFFENDER GROUNDS TO PETITION FOR REMOVAL

A TIER I OFFENDER may petition the court for an order allowing him or her to discontinue registration if the following requirements are met:

• On the basis of being convicted as an adult under MCL 28.728c(1), if ALL of the following apply:

• • “Ten or more years have elapsed since the date of his or her conviction for the listed offense or from his or her release from any period of confinement for that offense, whichever occurred last.” MCL 28.728c(12)(a).
  • The petitioner has not been convicted of any felony since the date of his or her conviction for the listed offense or from his or her release from confinement for that offense, whichever occurred last. MCL 28.728c(12)(b).
  • The petitioner has not been convicted of any listed offense since the date of his or her conviction for the listed offense or from his or her release from confinement for that offense, whichever occurred last. MCL 28.728c(12)(c).
  • “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(12)(d).
  • “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(12)(e).

• On the basis that the listed offense was a consensual sexual act under MCL 27.728c(3), and ANY of the following apply:

• • The victim was 13 years of age or older but less than 16 years old at the time of the offense, AND the petitioner is not more than 4 years older than the victim. MCL 28.728c(14)(a); OR
  • The conviction was for crime against nature or sodomy (MCL 750.158), gross indecency between males (MCL 750.338), gross indecency between females (MCL 750.338a), or gross indecency between males and females (MCL 750.338b) AND the victim was 13 years of age or older but less than 16 years old at the time of the offense, AND the petitioner is not more than 4 years older than the victim. MCL 28.728c(14)(b); OR
  • The conviction was for crime against nature or sodomy (MCL 750.158), gross indecency between males (MCL 750.338), gross indecency between females (MCL 750.338a), gross indecency between males and females (MCL 750.338b), or certain criminal sexual conduct-second degree offenses (MCL 750.520c(1)(i)) AND the victim was 16 years old or older at the time of offense, AND the victim was not under the “custodial authority” of the petitioner at the time of the offense. MCL 28.728c(14)(c).

• If the above-listed criteria does not fit the situation, then removal may be possible if EITHER of the following apply:

• • The petitioner was adjudicated as a juvenile and was less than 14 years of age at the time of the offense. MCL 28.728c(15)(a).
  • “The individual was registered under this act before July 1, 2011 for an offense that required registration but for which registration is not required on or after July 1, 2011.” MCL 28.728c(15)(b).

 

TIER II OFFENDER GROUNDS TO PETITION FOR REMOVAL

A TIER II OFFENDER may petition the court for an order allowing him or her to discontinue registration if the following requirements are met:

• On the basis that the listed offense was a consensual sexual act under MCL 27.728c(3), and ANY of the following apply:

• • The victim was 13 years of age or older but less than 16 years old at the time of the offense, AND the petitioner is not more than 4 years older than the victim. MCL 28.728c(14)(a); OR
  • The conviction was for crime against nature or sodomy (MCL 750.158), gross indecency between males (MCL 750.338), gross indecency between females (MCL 750.338a), or gross indecency between males and females (MCL 750.338b) AND the victim was 13 years of age or older but less than 16 years old at the time of the offense, AND the petitioner is not more than 4 years older than the victim. MCL 28.728c(14)(b); OR
  • The conviction was for crime against nature or sodomy (MCL 750.158), gross indecency between males (MCL 750.338), gross indecency between females (MCL 750.338a), gross indecency between males and females (MCL 750.338b), or certain criminal sexual conduct-second degree offenses (MCL 750.520c(1)(i)) AND the victim was 16 years old or older at the time of offense, AND the victim was not under the “custodial authority” of the petitioner at the time of the offense. MCL 28.728c(14)(c).

• If the above-listed criteria does not fit the situation, then removal may be possible if EITHER of the following apply:

• • The petitioner was adjudicated as a juvenile and was less than 14 years of age at the time of the offense. MCL 28.728c(15)(a).
  • “The individual was registered under this act before July 1, 2011 for an offense that required registration but for which registration is not required on or after July 1, 2011.” MCL 28.728c(15)(b).

 

TIER III OFFENDER GROUNDS TO PETITION FOR REMOVAL

A TIER III OFFENDER may petition the court for an order allowing him or her to discontinue registration if the following requirements are met:

• On the basis of being adjudicated as a juvenile under MCL 28.728c(2), if ALL of the following 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).

• On the basis that the listed offense was a consensual sexual act under MCL 27.728c(3), and ANY of the following apply:

• • The victim was 13 years of age or older but less than 16 years old at the time of the offense, AND the petitioner is not more than 4 years older than the victim. MCL 28.728c(14)(a); OR
  • The conviction was for crime against nature or sodomy (MCL 750.158), gross indecency between males (MCL 750.338), gross indecency between females (MCL 750.338a), or gross indecency between males and females (MCL 750.338b) AND the victim was 13 years of age or older but less than 16 years old at the time of the offense, AND the petitioner is not more than 4 years older than the victim. MCL 28.728c(14)(b); OR
  • The conviction was for crime against nature or sodomy (MCL 750.158), gross indecency between males (MCL 750.338), gross indecency between females (MCL 750.338a), gross indecency between males and females (MCL 750.338b), or certain criminal sexual conduct-second degree offenses (MCL 750.520c(1)(i)) AND the victim was 16 years old or older at the time of offense, AND the victim was not under the “custodial authority” of the petitioner at the time of the offense. MCL 28.728c(14)(c).

• If the above-listed criteria does not fit the situation, then removal may be possible if EITHER of the following apply:

• • The petitioner was adjudicated as a juvenile and was less than 14 years of age at the time of the offense. MCL 28.728c(15)(a).
  • “The individual was registered under this act before July 1, 2011 for an offense that required registration but for which registration is not required on or after July 1, 2011.” MCL 28.728c(15)(b).

 

DEFINITION OF “CUSTODIAL AUTHORITY”

For purposes of the Michigan Sex Offender Registration Act, “custodial authority” means one or more of the following:

• “The actor was a member of the same household as the victim.” MCL 28.722(b)(i).

• “The actor was related to the victim by blood or affinity to the fourth degree.” MCL 28.722(b)(ii).

• “The actor was in a position of authority over the victim and used this authority to coerce the victim to submit.” MCL 28.722(b)(iii).

• “The actor was a teacher, substitute teacher, or administrator of the public school, nonpublic school, school district, or intermediate school district in which that other person was enrolled.” MCL 28.722(b)(iv).

• “The actor was an employee or a contractual service provider of the public school, nonpublic school, school district, or intermediate school district in which that other person was enrolled, or was a volunteer who was not a student in any public school or nonpublic school, or was an employee of this state or of a local unit of government of this state or of the United States assigned to provide any service to that public school, nonpublic school, school district, or intermediate school district, and the actor used his or her employee, contractual, or volunteer status to gain access to, or to establish a relationship with, that other person.” MCL 28.722(b)(v).

• “That other person was under the jurisdiction of the department of corrections and the actor was an employee or a contractual employee of, or a volunteer with, the department of corrections who knew that the other person was under the jurisdiction of the department of corrections and used his or her position of authority over the victim to gain access to or to coerce or otherwise encourage the victim to engage in sexual contact.” MCL 28.722(b)(vi).

• “That other person was under the jurisdiction of the department of corrections and the actor was an employee or a contractual employee of, or a volunteer with, a private vendor that operated a youth correctional facility under section 20g of the corrections code of 1953, 1953 PA 232, MCL 791.220g, who knew that the other person was under the jurisdiction of the department of corrections.” MCL 28.722(b)(vii).

• “That other person was a prisoner or probationer under the jurisdiction of a county for purposes of imprisonment or a work program or other probationary program and the actor was an employee or a contractual employee of, or a volunteer with, the county or the department of corrections who knew that the other person was under the county’s jurisdiction and used his or her position of authority over the victim to gain access to or to coerce or otherwise encourage the victim to engage in sexual contact.” MCL 28.722(b)(viii).

• “The actor knew or had reason to know that a court had detained the victim in a facility while the victim was awaiting a trial or hearing, or committed the victim to a facility as a result of the victim having been found responsible for committing an act that would be a crime if committed by an adult, and the actor was an employee or contractual employee of, or a volunteer with, the facility in which the victim was detained or to which the victim was committed.” MCL 28.722(b)(ix).

 

PROCESS TO PETITION FOR REMOVAL FROM SEX OFFENDER REGISTRY IN MICHIGAN

The foregoing criterion is the ONLY means by which an individual may be eligible to obtain judicial review of his or her registration requirements under Michigan’s Sex Offender Registration Act.  This, however, does not prohibit an appeal of the conviction or sentence that is otherwise provided by law or court rule.

A petitioner must complete MC 406a (Petition to Discontinue Sex Offender Registration) and file in in the court in which the individual was convicted of committing the listed offense.  MCL 28.728c(4).  “However, if the conviction occurred in another state or country and the individual is a resident of this state, the individual may file a petition in the circuit court in the county of his or her residence for an order allowing him or her to discontinue registration under [the Michigan Sex Offender Registration Act] only.”  Id.  A petition cannot be filed if a previous petition for removal was filed and was denied by the court after a hearing.  Id.

A copy of the petition must be filed with the prosecuting attorney that prosecuted the case against the petitioner or, if the conviction occurred in another state, it must be filed with the prosecuting attorney in the county where the petitioner lives.  This must be filed with the prosecuting attorney at least 30 days before the hearing on the petition is held, and the prosecuting attorney is entitled to appear and participate in all proceedings regarding the petition, including seeking appellate review of the court decision.  MCL 28.728c(7).  The prosecuting attorney is also required to provide notice of the petition to the victim of the listed crime.  MCL 28.728c(8).  The victim has the right to attend all proceedings involving the petition and to make a written or oral statement to the court before any decision is made.  MCL 28.728c(10).

If the petition is based on removal from the sex offender registry for a Tier I offender whose conviction is over 10 years old or a Tier III offender whose adjudication is over 25 years old, 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).

However, for all petitions, the court shall not allow the individual to discontinue registration if the court determines that the individual is a continuing threat to the public.

If the petition is granted or denied, the court will execute MC 406b (Order On Petition To Discontinue Sex Offender Registration).  If the petition is granted, the order is forwarded to the Michigan State Police to carry out removal from the list.  If the petition is denied, the order is filed and the offender is precluded from trying to petition for removal again in the future.

The rules for removal from Michigan’s Sex Offender Registration are complicated, so offenders who believe they obtained eligibility are encouraged to speak to a lawyer first.  You only get one opportunity to file this petition correctly because you cannot try again after it is denied.  Since there are no second chances, you should have skilled legal counsel in your corner to ensure it is done correctly the first time.

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