Sex offenses are among the most serious and difficult to resolve fairly. This is based in part on the sensitive nature of the charged conduct and the general belief that sex offenders are more likely to re-offend than other criminals. Because of these facts, District Attorneys and judges, who are both elected in New York, have a tendency to treat sex offenders harshly, even if the specifics of the cases might not merit such treatment. There is a fear in the back of everyone's mind that a sex offender who is shown leniency will re-offend, and then the DA's Office and/or judge will receive unfavorable news coverage, which does in fact happen occasionally.
Also sex offenses are almost always "he said, she said," where the evidence boils down to the allegations of one person, some times a minor, who may not even understand or remember exactly what happened.
The consequences of conviction of any charged sex offense are so harsh that even in cases where the allegations are not credible, many defendants find themselves accepting guilty pleas to slightly reduced charges, because the threat of conviction after trial carries such heavy and unacceptable penalties.
In addition to all the unfairness leading up to a sex offense conviction, there is also unfairness after conviction, in that the conditions of probation or parole may be difficult to comply with (and the failure to obey the conditions can lead to additional jail time), and that there are numerous and severe civil consequences to pleading to a sex offense, as well as the life-long stigma of being labelled a "sex offender."
In my opinion, our justice system generally produces fair outcomes. Sex offenses, however, is one area where this is less true. In any event, if you are facing sex offense charges, it is crucial for you to have a defense counsel who has experience handling sex offenses and that he or she explain the consequences of how the case is being handled.
This webpage will cover some of the special issues you should keep in mind if your are facing sex-related charges.
Sex offenses carry harsher penalties than other crimes.
- Under Penal Law (P.L.) § 60.35(1)(b), there is a $1,000 supplemental sex offender victim fee;
- A sex offender must also register under the Sex Offender Registration Act (SORA) and pay the associated registration fee;
- If probation is imposed, the probationary period is longer than for other crimes and sex offenders usually have many more conditions (some of which are required by law) than other probationers;
- Under P.L. § 70.80(2), the Court is specifically authorized to consider any history of sex offenses or inability to control sexual behavior in arriving at an appropriate sentence
- If a sex offender is confined, even after serving his or her jail or prison time, he or she still faces the possibility of civil confinement.
Sex Offender Registration Act (SORA)
In 1994, in response to the rape and murder of seven-year-old Megan Kanka by a man who had been previously convicted of sex crimes, the New Jersey Assembly passed what was known as "Megan's Law," which required sex offenders to register and be tracked by the state. It also required community notification when sex offenders moved into a neighborhood.
A version of Megan's Law now exists in all fifty states.
In New York, it is referred to as the Sex Offender Registration Act (SORA) and is contained in Correction Law, Article 6-C.
If a person is convicted of a registerable offense, he or she is subject to SORA. Below are the registerable offenses:
- P.L. § 120.70, E Felony - luring a child *
- P.L. § 130.20, A Misdemeanor - sexual misconduct
- P.L. § 130.25, E Felony - rape in the third degree
- P.L. § 130.30, D Felony - rape in the second degree
- P.L. § 130.35, B Felony - rape in the first degree
- P.L. § 130.40, E Felony - criminal sexual act in the third degree
- P.L. § 130.40, E Felony - sodomy in the third degree
- P.L. § 130.45, D Felony - criminal sexual act in the second degree
- P.L. § 130.45, D Felony - sodomy in the second degree
- P.L. § 130.50, B Felony - criminal sexual act in the first degree
- P.L. § 130.50, B Felony - sodomy in the first degree
- P.L. § 130.52, A Misdemeanor - forcible touching **
- P.L. § 130.53, E Felony - persistent sexual abuse
- P.L. § 130.55, B Misdemeanor - sexual abuse in the third degree **
- P.L. § 130.60, A Misdemeanor - sexual abuse in the second degree
- P.L. § 130.65, D Felony - sexual abuse in the first degree
- P.L. § 130.65-a, E Felony - aggravated sexual abuse in the fourth degree
- P.L. § 130.66, D Felony - aggravated sexual abuse in the third degree
- P.L. § 130.67, C Felony - aggravated sexual abuse in the second degree
- P.L. § 130.70, B Felony - aggravated sexual abuse in the first degree
- P.L. § 130.75, B Felony - course of sexual conduct against a child in the first degree
- P.L. § 130.80, D Felony - course of sexual conduct against a child in the second degree
- P.L. § 130.90, D Felony - facilitating a sex offense with a controlled substance
- P.L. § 130.95, A-II Felony - predatory sexual assault
- P.L. § 130.96, A-II Felony - predatory sexual assault against a child
- P.L. § 135.05, A Misdemeanor - unlawful imprisonment in the second degree ***
- P.L. § 135.10, E Felony - unlawful imprisonment in the first degree ***
- P.L. § 135.20, B Felony - kidnapping in the second degree ***
- P.L. § 135.25, A-I Felony - kidnapping in the first degree ***
- P.L. § 230.04, A Misdemeanor - patronizing a prostitute in the third degree ****
- P.L. § 230.05, E Felony - patronizing a prostitute in the second degree
- P.L. § 230.06, D Felony - patronizing a prostitute in the first degree
- P.L. § 230.30(2), C Felony - promoting prostitution in the second degree
- P.L. § 230.32, B Felony - promoting prostitution in the first degree
- P.L. § 230.33, B Felony - compelling prostitution
- P.L. § 230.34, B Felony - sex trafficking
- P.L. § 235.22, D Felony - disseminating indecent material to minors in the first degree
- P.L. § 250.45(2), (3) and (4), E Felony - unlawful surveillance in the second degree *****
- P.L. § 250.50, D Felony - unlawful surveillance in the first degree
- P.L. § 255.25, E Felony - Incest (committed prior to 11/1/06)
- P.L. § 255.25, E Felony - Incest in the third degree
- P.L. § 255.26, D Felony - Incest in the second degree
- P.L. § 255.27, B Felony - Incest in the first degree
- P.L. § 263.05, C Felony - use of a child in a sexual performance
- P.L. § 263.10, D Felony - promoting an obscene sexual performance by a child
- P.L. § 263.11, E Felony - possessing an obscene sexual performance by a child
- P.L. § 263.15, D Felony - promoting a sexual performance by a child
- P.L. § 263.16, E Felony - possessing a sexual performance by a child
- P.L. § 263.30, B Felony - facilitating a sexual performance by a child with a controlled substance or alcohol
* If the underlying offense is a class A or a class B felony, then the offense of luring a child shall be considered respectively, a class C felony or class D felony.
** A registerable offense only if the victim is less than eighteen years of age or where the defendant has a prior conviction for a sex offense, a sexually violent offense, forcible touching or sexual abuse in the third degree or an attempt thereof even if registration was not required for the prior conviction; regardless of when the prior conviction occurred.
*** A registerable offense only if the victim is less than seventeen years old and the offender is not the parent of the victim.
**** A registerable offense only if the person patronized is in fact less than seventeen years old.
***** A registerable offense unless the trial court finds that registration would be unduly harsh and inappropriate. The Attempt version of this offense is registerable for those offenders who committed the offense on or after Sept. 23, 2011, or who previously committed the offense but were still under sentence as of that date.
Also, individuals convicted in another jurisdiction (federal, military, another state or country) who reside in New York State are required to register if:
- The individual is convicted of an offense equivalent to a New York State registerable sex offense;
- The individual is convicted of a felony requiring registration in the conviction jurisdiction; or
- The individual is convicted of:
- 18 U.S.C. § 2251 (sexual exploitation of children);
- 18 U.S.C. § 2251A (selling or buying of children);
- 18 U.S.C. § 2252 (certain activities relating to material involving the sexual exploitation of minors);
- 18 U.S.C. § 2252A (certain activities relating to material constituting or containing child pornography);
- 18 U.S.C. § 2260 (production of sexually explicit depictions of a minor for importation into the United States);
- 18 U.S.C. § 2422(b) (coercion and enticement)
- 18 U.S.C. § 2423 (transportation of minors); or
- 18 U.S.C. § 2425 (use of interstate facilities to transmit information about a minor).
Under SORA, there are three levels of offenders, based upon whether the risk of a repeat offense is determined to be low, moderate or high. Level 1 is low risk, 2 moderate risk, and 3 is high risk.
At each risk level, there is also the possibility of being designated either a "sexual predator," "sexually violent offender" and a "predicate offender."
The sentencing judge is required to hold a SORA hearing to determine the defendants level and characterization.
The Board of Examiners of Sex Offenders is charged with preparing the so-called risk assessment instrument (RAI), which considers the following factors:
- Use of violence;
- Sexual contact with victim;
- Number of victims;
- Duration of offense conduct with victim;
- Age of victim;
- Other victim characteristics;
- Relationship between offender and victim;
- Age at first sex crime;
- Number and nature of prior crimes;
- Recency of prior felony or sex crime;
- Drug or alcohol abuse;
- Acceptance of responsibility;
- Conduct while confined or under supervision;
- Supervision; and
- Living or employment situation.
Each factor is worth a differing amount of points, and the Board tallies up how many points apply to the defendant.
The Board's tally of points results in a presumptive risk level: Level 1 (70 points and under), Level 2 (75-105), and Level 3 (110 and over). The Court, however, may depart either up or down if there is an aggravating or mitigating factor that has not otherwise adequately been taken into account by the guidelines. Also, there are four "overrides" that automatically result in a presumptive risk assessment of Level 3 (a prior felony conviction for a sex crime, infliction of serious physical injury or causing death, recent threat to re-offend, or a clinical assessment of a psychological, physical or organic abnormality).
The standard of proof at the hearing is "clear and convincing" (as opposed to "beyond a reasonable doubt" at a criminal trial, or "preponderance of the evidence" at a typical civil trial). Also, unlike a trial, hearsay is allowed, so long as it is reliable. Further, facts determined at trial or the guilty plea are accepted as true and may not be re-litigated by the defendant.
Once a defendant has been determined to be a sex offender, SORA requires the following:
- Report annually where they live by signing and returning an annual verification form to DCJS within 10 days after receiving it;
- Notify Division of Criminal Justice Services (DCJS) in writing of a new address no later than 10 days after moving;
- Report in person to a local police agency to have a current photograph taken every three years (Level 1 and 2 offenders) or every year (Level 3 offenders);
- Notify DCJS in writing of any institution of higher education they are attending, enrolled, living or employed. Any change in status must be reported to DCJS no later than 10 days after the change;
- Provide in writing Internet service providers, Internet screen names and e-mail accounts; and
- Level 3 offenders and offenders with a sexual predator designation must personally verify their addresses every 90 days with law enforcement. Law enforcement may at that time photograph a level 3 offender if that offender’s appearance has changed.
Failure to perform any of the above registration obligations is a felony level crime. A first conviction is punishable as a Class E felony; a second or subsequent conviction is punishable as a Class D felony.
Level 2 offenders (moderate risk) and Level 3 offenders (high risk) must register for life.
Level 1 offenders (low risk) must register for 20 years, unless they have a designation (e.g., sexual predator, sexually violent offender, or predicate sex offender) in which case they must register for life.
The DCJS has a fairly good website with information on SORA, which you should consult if you have more questions.
Civil Management Review
In addition to all of the above, a sex offender may face "civil commitment" after the end of a term of imprisonment, under the Sex Offender management and Treatment Act (SOMTA), Mental Hygiene Law, Article 10.
The following information is taken from the Mental Hygiene Law, Article 10, as well as the DCJS webpage.
Sex offenders currently in the custody or under the supervision of the the NYS Department of Correctional Services (DOCS), Division of Parole (DOP), Office of Mental Health (OMH) or Office of Mental Retardation and Developmental Disabilities (OMRDD) are eligible for civil management review if they are serving a sentence for a qualifying sex offense. Also, certain felonies, which are non-sexual in nature, can be qualifying if they are sexually motivated.
The process begins when a sex offender is referred to OMH to be considered for civil management. The two most common referrals would be when: (1) a sex offender is about to be released from prison; or (2) an offender has served his or her parole time, and is about to be released from parole.
The next step involves a screening of the case by a multi-disciplinary team. Some cases are then referred to a "case review team" for further evaluation. The case review team, based on a review and assessment of records and a psychiatric exam, considers whether the offender is a sex offender requiring civil management. If the case review team, and the psychiatrist or psychologist who has evaluated the offender, determines that the offender should be civilly managed, the case is referred to the Attorney General's Office.
(Approximately 2.8% of all cases reviewed by OMH are referred to the Attorney General's Office).
The Attorney General's Office then reviews the case, taking into consideration any supervision that the offender will be under after he or she is released from prison, and ultimately, the Attorney General makes a decision as to whether or not to file a petition requesting civil management.
If a petition is filed, it is filed in the Supreme or County Court where the sex offender is incarcerated. However, the sex offender may make a request that the case be moved to the court where the sex offender was convicted of the sex offense.
The court, without a jury, then holds a hearing to determine if there is probable cause to believe that the sex offender is a sex offender requiring civil management. If probable cause is found, the sex offender is immediately held for trial.
(The sex offender can waive a jury trial and can opt to have his or her case heard by judge alone).
A sex offender is entitled to a 12 person jury trial. The Attorney General must prove by clear and convincing evidence that the sex offender is a sex offender that suffers from a "mental abnormality" (a condition or disease that makes an individual behave in a way that causes the individual to commit a sex offense and causes that person to have serious difficulty in controlling that behavior).
The jury must find by a unanimous verdict that the Attorney General proved the sex offender is a sex offender who suffers from a mental abnormality. If the verdict is not unanimous, the court may conduct a second trial. If the jury at the second trial cannot find by a unanimous verdict that the sex offender suffers from a mental abnormality, the court will dismiss the petition.
The judge has two options when a mental abnormality is found:
- Make a determination that the sex offender is so dangerous that he or she should be confined; or
- Release the offender to strict and intensive supervision and treatment (SIST) under the supervision of the Division of Parole.
Under SIST, the individual must submit to sex offender treatment and other conditions. Conditions could include GPS monitoring, no contact with victims, polygraph monitoring and other conditions ordered by the court. Each case is examined on an individual basis and the offender's treatment plan is tailored to that individual's case. SIST is only intended for those individuals who can safely live in the community. For many of these people, SIST will be imposed only after they have served their time in prison and are ready to be released, and/or have completed their sentence of parole.
The length of time that an offender will remain under civil management will vary depending on the offender's progress in treatment. Annual review is granted to those who are placed in an OMH secure treatment facility. If OMH determines that the individual is no longer a dangerous sex offender requiring confinement, then OMH can file a petition in court for the individual's discharge or release to SIST. Additionally, the committed offender may file a petition with the court at any time to be released from the facility. Those placed on SIST can petition the court every two years for modification or termination of the SIST conditions.
SIST can be revoked if the individual violates a condition of the sentence or if a treating professional indicates that the individual may be a dangerous sex offender requiring confinement. The parole officer may take the person into custody and transport the person to a secure treatment or correctional facility for a psychiatric examination. After the person is in custody, the Attorney General may file either: (1) a petition for confinement; or (2) a petition to modify the conditions of SIST. If a petition is filed, the court proceeds with another hearing.
Currently, there are only two secure treatment facilities: Central New York Psychiatric Center in Marcy, New York, and St. Lawrence Psychiatric Center in Ogdensburg, New York.