Sex Offender Registration in Texas. Time for a Change.

Criminal Lawyer Ed Chernoff
Ed Chernoff Criminal Defense Attorney

Currently, Chapter 62 of the Texas Code of Criminal Procedure governs Sex Offender Registration. It details when registration is required and for how long. If we were to condense it down to basics, just about everybody has to register for the rest of their life if they plead guilty or no-contest or are found guilty by a jury for the following offenses: Possession of Child Pornography, Continuous Sexual Assault of a Child, Indecency with a Child(except under 21.11(a)(2)), Sexual Assault, Aggravated Sexual Assault, Kidnapping and Burglary if intent was to commit a sexual act. There are other situations where reporting is required, and others where the reporting is limited to ten years.

The general mantra used to explain the purpose of the Sex Offender registration statute is that it protects the public by notifying where the sex predators are. It is not hard to envision situations where notice would be helpful. Some people are predators and society demands protection. However, an overall registration requirement like the one found in the State of Texas paints with a broad brush. It presumes that everybody who has a reportable conviction is a danger.

The real problem with Sex Offender registration, as I see it, is that most of the time it does not appear designed for protection but winds up being additional punishment for the unique circumstances of a sexually related offense. Many of my clients are more worried about registration than the sentence itself. It is particularly galling to clients who are offered deferred adjudication. They aren’t even convicted of the crime, but still must register for life!

It is difficult to explain to my client the reason why they must be tagged as a sex offender other than to tell them that the law gives nobody in court any option. A lot of times, there is no logical connection between registration and the alleged crime. There is, after all, no registration for repeatedly violent offenders or repeated theft convictions and I am sure that the public would like to know if one of those individuals moved into the neighborhood! By making individuals report, irrespective of the true nature of their offense, we are merely tagging them as forever dangerous to the public. This isn’t true.

Let me give you some examples I have come across. If a 19 year old has consensual sex with a 15 year old, this would be a reportable conviction. If two 40 year olds have sex, and one claims that she was too drunk to resist the other’s sexual advances, this would be a reportable conviction. If a man has consensual sex with his adult Niece, this would be a reportable conviction. If a woman, high on drugs, sells her body on the street and has been convicted of prostitution more than two times, the third time would be a reportable conviction. I could go on and on.

The examples listed above should certainly be punished. However, their punishment shouldn’t be hiked by a reporting requirement. It shouldn’t mean that after they are “punished”, they would not be able to find some place to live. It shouldn’t mean that they are refused admission to clubs, neighborhoods, schools or gyms for the rest of their lives. It shouldn’t mean that this individual must be shamed for the rest of their life, irrespective of the actual nature of their offense. What happened to doing the time for the crime?

I understand we want to inform the public sufficiently if a true predator is in their midst. What to do? My idea would be to leave the definition of “reportable conviction” alone but leave open the term of reporting for the courts, prosecution and defense to decide. Let it become part of the plea bargain. Let the judge decide after a jury conviction. It seems reasonable to assume that the individuals most knowledgeable about the offense in question, and the particularities of the accused would be in the best position to determine what protection the public needs. Of course, this would require us to drop the charade that the reporting requirement is merely a method to protect the public and call it what it is; Punishment.