State Judicial Waivers of Sex Offender Registration Leave Offenders in Jeopardy

Massachusetts gives little discretion to judges regarding sex offender registration when an individual is convicted of a qualifying sex offense. Pursuant to Massachusetts General Law chapter 6, section 178E (f) a judge may waive the registration requirement within 14 days of the conviction if the person convicted has not been sentenced to immediate confinement and there is a judicial  finding that the person does not pose a risk to reoffend. The judge will look at the facts that led to the conviction and the defendant’s criminal history in making this finding. This waiver does not apply to crimes against children or to sexually violent offenses. Certain prior sex offense convictions also disqualify the individual from waiver. In practice this means that the only likely recipient of such a waiver is a person convicted of Indecent Assault and Battery over 14 who has no record of sex offense convictions. This waiver is applied very sparingly and would most likely only be considered for conduct such as a drunk person patting another person’s rear end or breast over her clothing. While this behavior would violate the statute, a judge may be receptive to the argument that the conduct does not warrant sex offender registration.

Today the 6th Circuit issued a troubling opinion finding that the waiver of sex offender registration by a Tennessee judge following a “no contest” plea did not absolve the defendant of the corresponding federal registration requirements. In U.S. v. Paul, the Court explained that while a sex offender’s federal registration requirements “are coextensive with corresponding state registration requirements . . . [it] imposes duties on all sex offenders, irrespective of what they may be obliged to do under state law.” While a 6th Circuit opinion is not binding in Massachusetts, a person whose sex offender requirements have been waived in the MA trial court risks federal prosecution and conviction under this reasoning. MA is part of the 1st Circuit which could find the reasoning in U.S. v. Paul persuasive and adopt its ruling if the issues came up in its own jurisdiction.