Two Steps Forward – Toward Eliminating the Registration of Adjudicated Juveniles as Sex Offenders

By

Sharon Denniston, Ph.D.

Juvenile Advocate and Public Policy Consultant

 

In June 2020 the national Association for the Treatment of Sexual Abusers (ATSA) published The Registration & Community Notification of Children & Adolescents Adjudicated of a Sexual Crime: Recommendations for Evidence-Based Reform.  In this document the organization detailed the research related to juveniles with sexual behavior issues, recidivism, the effects of neurological development, and consequences of sex offender registration.  ATSA took a strong position against registering adjudicated youth.  Michigan, however, continues to register a significant number of youths adjudicated for offenses that if committed by an adult would qualify as a Tier III offense (largely because the victim was a minor).  Registration and the duty to comply with the Michigan Sex Offender Registration Act (MSORA) by youthful offenders is required for a lifetime. Michigan’s policy continues to exceed the federal Adam Walsh Act guidelines (also known as the Sex Offender Registration and Notification Act, or SORNA) for the registration of adjudicated youth.  

Traditionally, termination of the duty to comply with MSORA is effectuated by language in the juvenile set-aside law (MCL 712A.18e) and in the registration act (MCL 28.722, 723, 723a, and 728c).  Adjudicated youths who are eligible to petition the court under MCL 712A.18e to have a criminal record set-aside not only get their record cleared if the court rules in their favor, their duty to comply with MSORA is also terminated and their name is removed from the registry because the offense is treated as if it never occurred.  

Language in the MSORA also provides two avenues in which adjudicated youth might have their duty to comply with MSORA terminated: 1) a petition can be filed in court for a determination as to whether an offense was consensual in nature; if the court so determines, the duty to comply with MSORA is terminated, and 2) after 25 years of registration individuals registered because of a juvenile adjudication may also petition the court to have their duty to comply with MSORA terminated, but only if certain requirements are met.      

In December 2020, the Michigan Legislature passed two laws that impacted adjudicated youth; one expanded the juvenile set-aside law (PA 361 of 2020), and the other changed the requirements of probate court regarding the sealing of records (PA 362 of 2020).  Both changes have an indirect, but very significant positive impact on youth adjudicated of offenses that are defined in Michigan’s Sex Offender Registration Act as requiring compliance with that act.  

First, PA 361 of 2020 added language to enhance the juvenile set-aside law to automatically set-aside juvenile adjudications at age 18 or two years after the termination of court supervision, whichever is later.  MCL 712.18t was added to the Probate Code to take effect 2 years after the effective date of the act to allow time for the Michigan State Police (MSP) to implement these changes. One extension of up to 180 days can be approved by the governor if the MSP needs it to implement the act.  Although the bill was approved by the governor on January 4, 2021, the effective date of the act is July 3, 2021.  This means this change should be implemented on approximately July 3, 2023, but no later than December 30, 2023.  There are offenses that are ineligible for automatic set-aside.  These include any offense that if committed by an adult is punishable by up to life in prison, and a number of other offenses that were explicitly excluded.  Relevant to the MSORA, offenses excluded from automatic set-aside include CSC1 (MCL 750.520b), CSC3 (750.520d), Assault with Intent to Commit Criminal Sexual Conduct (MCL 750.520g), and Kidnapping (MCL 750.349).   However, CSC2 (MCL 750.520c), CSC4 (MCL 750.520e), Gross Indecency (MCL 750.338, 338a, and 338b), and Enticing a Child (MCL 750.350), will be automatically set-aside.  The law does not limit how many offenses can/will be set-aside, and the Attorney General and prosecutor cannot contest the automatic set-aside.  Upon the automatic set-aside of an offense, by law, the person is considered not to have been previously adjudicated for that offense.  This is very significant because persons adjudicated of offenses that required sex offender registration will no longer meet the definition of “convicted” as defined in the MSORA, and therefore no longer have to comply with the MSORA once these offenses are automatically set-aside.  The remaining sexual offenses that do not require registration in Michigan are all eligible for automatic set-aside as well. In most states an offense that is set-aside does not require registration, but each state’s sex offender registration law would need to be evaluated individually.          

The second law change, PA 362, amended MCL 712A.28.  The change requires that records of all cases brought before the court not be open to the public beginning January 1, 2021.  This includes ALL juvenile cases—even those involving sexual offenses. The MSORA only requires registration of persons adjudicated in probate court whose disposition is open to the general public under section 28 of chapter XIIA of the probate code (MCL 28.722(a)(iii)).   With the changes in PA 362, section 28 no longer allows those juvenile dispositions to be available to the public.  With this law change none of the cases before the probate court after January 1, 2021, require adjudicated juveniles to comply with Michigan’s Sex Offender Registry, even if the adjudication was for an offense that previously required registration.  It should be noted that the law change in PA 362 failed to seal the records of cases brought before the court prior to January 1, 2021.  It’s unjust that youth adjudicated in the past are still subject to registration laws when those in the future do not—even when the adjudication was for the exact same offense.    

Despite these great advances in juvenile sex offender registration reform, there is still more work to be done.  Here’s what’s missing from these law changes as they relate to the registration of adjudicated youth as sex offender because they went before the court prior to January 1, 2021.

1. Persons with a CSC 1 (MCL 750.520b) juvenile adjudication or a Kidnapping juvenile adjudication (MCL 750.349) are required to register per MSORA for life, even when the adjudication did not involve penetration with force, threat of violence, rendering unconscious or drugging.  Michigan’s registration requirement for persons with juvenile adjudications exceeds the federal registration guidelines for juvenile offenses requiring registration when none of these variables was a factor. 
2. Persons with a CSC 1 juvenile adjudication (MCL 750.520b) or a Kidnapping juvenile adjudication (MCL 750.349) are still not eligible to petition the court to have the adjudication set-aside.  
3. Persons with a CSC 3 juvenile adjudication (MCL 750.520d) are required to register per MSORA for life, even when the adjudication did not involve force, threat of violence, rendering unconscious, or drugging.  Michigan’s registration requirement for persons with juvenile adjudications exceeds the federal registration guidelines for juvenile offenses requiring registration when none of these variables was a factor. Persons with a CSC 3 juvenile adjudication are eligible to petition the court to have this offense set-aside if other requirements are also met. Until this occurs these youth are vulnerable to numerous adverse consequences documented by ATSA in The Registration & Community Notification of Children & Adolescents Adjudicated of a Sexual Crime: Recommendations for Evidence-Based Reform, including barriers to college acceptance and employment.     
4. Persons with an Assault with Intent to Commit Criminal Sexual Conduct juvenile adjudication are still required to register per MSORA for life, even when the adjudication did not involve penetration (MCL 750.520g(2)).  Michigan’s registration requirement for persons adjudicated as a juvenile for this offense exceeds the federal registration guidelines for juvenile offenses requiring registration because penetration was not involved. Persons adjudicated as a juvenile for this offense are eligible to petition the court to have this offense set-aside if other requirements are also met. Again, however, these youth are vulnerable to numerous documented adverse consequences of registration until such time the adjudication is set-aside.
5. Persons with an Assault with Intent to Commit Criminal Sexual Conduct in the Second-Degree juvenile adjudication involving penetration (MCL 750.520g(1)) are required to register per MSORA.  Persons adjudicated as a juvenile for this offense are eligible to petition the court to have this offense set-aside if other requirements are also met. Again, these youth are also vulnerable to numerous documented adverse consequences of registration until such time the adjudication is set-aside.
6. Persons with a CSC2 (MCL 750.520c), CSC4 (MCL 750.520e), Gross Indecency (MCL 750.338, 338a, and 338b), or Enticing a Child (MCL 750.350) juvenile adjudication are still required to comply with MSORA. Michigan’s registration requirement for persons adjudicated as a juvenile for these offenses exceeds the federal registration guidelines for juvenile offenses requiring registration because these do not involve penetration with force, threat of violence, rendering unconscious or drugging.  At age 18 or two years after the termination of court supervision, whichever is later, these offenses will be automatically set-aside.  Once the offense is set-aside the offense no longer requires a person to comply with MSORA.  Until this occurs, for several years these youth are vulnerable to the numerous consequences documented by ATSA, including barriers to college acceptance when applying to attend college immediately after high school. 

I would like to think that these changes are just a start for more to come. Perhaps in the current legislative session we can take one giant step forward and codify paths to the removal of all adjudicated youth from Michigan’s Sex Offender Registry. Below are recommended changes to achieve this.  

1. Change the Michigan Sex Offender Registration Act (MSORA) to not exceed federal registration requirements for juvenile registration.
2. Change MSORA to allow ALL juvenile offenders the ability to petition the court for removal from the registry if they have successfully completed sex offender treatment.  
3. Change MSORA to automatically remove all remaining juvenile offender registrants at age 25 if they are registering solely for a juvenile offense (some can’t afford to petition).  Tennessee does this and has substantially implemented the federal Adam Walsh Act (SORNA).  
4. Change the Juvenile Set-Aside law to allow those excluded from the ability to petition the court for set-aside at age 18 to be able to do this at age 25 instead, for all offenses, including CSC1.  Note: It is important that juvenile sexual offenses be set-aside so these adjudications will not subject the person to registration in another state, even when registration is not required in Michigan.   

 

The Michigan Chapter of the Association for the Treatment of Sexual Abusers Board encourages you be in contact with your state representatives to let them your concerns for our youth affected by these policies.