By Sharon Denniston, Ph.D. PPA – Law and Public Policy, Juvenile Advocate, ATSA and MI-ATSA Member
Often I am contacted by young adults who were adjudicated as a juvenile for a sexual offense. Some are on the registry, while others are not. One thing always seems to ring clear—despite having their offense settled in Family Court, having completed treatment, and having long left the jurisdiction of the court, these adults are still significantly impacted by their juvenile adjudication. When these individuals first come to me, many have issues of depression and anxiety stemming from the consequences of their juvenile record.
There is good news though. While many individuals do not realize it, they often are eligible to have their juvenile sexual offense set-aside (also referred to as expunged). Having personally provided consultation, and having successfully assisted them in petitioning the court for set-aside, I have witnessed the profoundly significant positive impacts to their life when these petitions are granted. It is as if a burden has been lifted from them—and they flourish.
The depth of joy helping a youthful offender achieve this status is only surpassed by the depth of sadness I feel when I must tell someone that they are not eligible to have their juvenile offense set-aside. This is especially anguishing when the ineligibility resulted from their having been convicted of a felony as an adult. A number of these individuals have openly admitted that in their early adult life (usually between 18 and 21), they were either angry or depressed about the impacts they were experiencing as a consequence of their juvenile adjudication, and went on to commit drug, alcohol, larceny, or destruction of property-related offenses. Sadly, when this subsequent adult offense is a felony, it precludes them from getting their juvenile sexual offense set-aside. Even more anguishing is when that set-aside would have also removed them from the sex offender registry. How I wish I could have spoken to these youth as soon as they were adjudicated to help them better understand what options may be available to them in the future–setting them on a trajectory for success, rather than one of hopelessness.
So what do I wish these juveniles knew after having been adjudicated?
- A person who has been adjudicated of not more than 3 juvenile offenses, of which not more than one is for a juvenile offense that is a felony, is eligible to have all of these set-aside, if other criteria are also met.
- Application for set-aside may be made one year after a person’s sentence has been imposed on them, or after completion of any detention, or when the person turns 18 years old—whichever is later. They no longer have to wait until age 25.
- If the person has been convicted of an adult felony, they are ineligible to have any juvenile offense set-aside. SO, THEY NEED TO ABIDE BY THE LAW AND KEEP THEIR RECORD CLEAN. A misdemeanor offense as an adult does not make them ineligible to have their juvenile record set-aside, but it does make it harder to prove to the court that they are a law-abiding citizen and have been rehabilitated.
- Unfortunately, an adjudication for an offense that if committed by an adult would be a felony for which the maximum penalty is life imprisonment is not eligible for set-aside (For example, a juvenile adjudicated for a CSC1 offense cannot get this offense set-aside.)
- Unfortunately, a juvenile offense resulting in a conviction in adult court cannot be set-aside under the juvenile set-aside law (it may be eligible for set-aside under the adult set-aside law).
- The person’s behavior subsequent to their juvenile adjudication is very important. In fact, it is one of the criteria that a judge must look when making their decision to grant a petition to have a juvenile criminal record set-aside.
- How a person is impacted by their criminal record, and whether they pose a safety risk to the public, must also be considered by the judge when making their decision to grant a petition to have a juvenile criminal record set-aside.
Some further suggestions for persons that hope to petition for a set-aside of their juvenile criminal record:
- If a person has an alcohol or drug addiction, they should get immediate treatment for this, and do this well before petitioning for set-aside.
- They should participate in, and successfully complete, treatment for any sexual behavior issues.
- They should stay in school. When they graduate from high school they should go to college, work, or volunteer. They should NOT sit around idly.
- They should participate in pro-social, age-appropriate activities where possible.
They should take the set-aside process seriously. When a person thinks they are ready to petition for set-aside, they should not be afraid to consult with a juvenile advocate versed in sexual offense and set-aside laws to strategically guide them through the process, and help them “put their best foot forward”. This is especially important if the offense is of a sexual nature, or if it is likely to be contested by the victim. This preparation work will help increase their chances of having the set-aside petition granted when a lawyer represents it in court.