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Federal judge holds a federal sex offender rule unconstitutional

by | Feb 1, 2023 | Sex Crimes

A federal judge in California has found a key part of the federal Sex Offender Registration and Notification Act (SORNA) to be unconstitutional. SORNA makes it a federal crime when a sex offender fails to register and then travels outside their state. People convicted under SORNA could face up to 10 years in federal prison.

The part of the law U.S. District Judge Jesus G. Bernal found unconstitutional is what happens to people who are no longer required to register with their states.

In this case, a group of men from California who were prosecuted under SORNA sued because California has adjudicated them as rehabilitated and they are no longer required to register as sex offenders.

Indeed, they cannot register as sex offenders under California law. Nevertheless, the Department of Justice said they still had to register, including supplying and updating certain information. But California doesn’t collect that information even for currently registered sex offenders. The Justice Department continued to prosecute them.

What SORNA has to say about this situation is that, when someone is prosecuted for failing to register but they aren’t required to register, that person has the burden of proving that they were unable to register.

Judge Bernal says this puts the defendant in the position of having to prove their innocence rather than the government having to prove their guilt.

This policy “has done exactly what is forbidden by the Constitution: ‘to declare an individual guilty or presumptively guilty of a crime,’” the judge wrote.

This could affect a lot of people nationwide

As we mentioned above, SORNA specifically requires sex offenders to provide specific information listed in the law. For example, it requires the person to provide the state with their Social Security number, work or school information, all internet user names, vehicle registrations and professional licenses.

But what if your state doesn’t collect all of those things? State laws differ on what sex offenders must include in their registration. As is the case in California, your state might not want all the information required by SORNA.

Under SORNA, a prosecutor could consider you in violation of your registration requirement for not including all of that information. Then, if you travel out of state, you’ve violated federal law.

Unfortunately, the federal judge’s authority only extends to his district. In the rest of the country, rehabilitated sex offenders – or those whose states don’t require all the information listed in SORNA – could still be at risk of prosecution.

Still, the ruling puts the Justice Department on notice that it cannot constitutionally prosecute people for violating a law they literally can’t comply with – and shouldn’t have to.

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