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Sex Offenses & Offender Registry

When a defendant is charged with a sexual offense against a minor, the prosecution may now introduce evidence of a defendant’s uncharged sexual offenses against minors without having to justify the admissibility of the evidence. Prior to the enactment of MCL 768.27a (enacted January 1, 2006), the prosecution was required to meet the standard of MRE 404(b) when introducing “other acts” evidence against the accused (also referred to as “character” evidence). This required the prosecution to at least proffer a reason — other than proving the defendant’s character — for offering the evidence.

Before the enactment of MCL 768.27a, if the prosecution wanted to introduce testimony that a defendant had fondled his next door neighbor’s5 year old in a current case against a different victim, the prosecution was required to show that this evidence was being introduced to show a common plan or scheme or some other exception to the character evidence rule. The prosecution then had to clear the hurdle of MRE 403, and demonstrate that the evidence was more probative (more likely to prove a key issue) than prejudicial to the defendant. Even under this standard, judges were inclined to admit more evidence than not, but at least there was some standard to give a defense attorney fodder for an appeal. Under the new statutory rule (which has been held to be constitutional in the unpublished opinions of People v Pattison and People v McCaw) all other acts against a minor are admissible, and the stop-gap of MRE 403 does not appear to be available to defense attorneys to prevent the admission of this evidence.

Defense counsel must continue to be vigilant in filing pretrial motions to stop the admission of this evidence, despite the more expansive rule. Counsel will be called upon to find more creative ways to argue for the application of MRE 403 to this rule and must continue to continue to argue that the standard for other acts evidence has been, and should be MRE 404(b).

The Sex Offender Registry Act (SORA)

When a defendant is convicted of a “listed offense,” he or she is required to register with the Michigan Sex Offender Registry. Listed offenses include the obvious (first-, second-, third-, even fourth-degree criminal sexual conduct) and the not so obvious (three or more violations for window peeping, indecent exposure or failing to support a family). Failure to register as required is a misdemeanor for a first offense, and a felony for a second or subsequent failure to register. Registration means that the public has access, courtesy of the Michigan State Police, to a defendant’s last known address description (in some cases an actual photograph), and whether the defendant works for a secondary school system. A defendant is required to re-register every time there is a change in address. The registration requirement is for life for first- and second-degree criminal sexual conduct and possession of child pornography, and for 25 years for other listed offenses (see MCL 28.722 for list). Now, thanks to the 2007 case of People v Golba, defendants can be required to register for convictions that aren’t listed under SORA. In Golba, the defendant was convicted of using the Internet to solicit sex form a 12 year old (really a police officer). The Internet crime was not listed under SORA, but the judge held, and the appellate court affirmed, that the underlying facts of the case were sexual in nature and thus the defendant was required to register.

Even defendants qualifying for the Holmes Youthful Trainee Act are required to register, although there is some relief under the act for juveniles who are convicted for a crime committed before the age of 17. Because the consequences of a conviction for a sexual offense are so severe, it is imperative for defense counsel to file all of the necessary pretrial motions and ensure that the defendant receives a fair trial.