At Prain Law PLLC, we defend those falsely accused of Criminal Sexual Conduct (CSC) at the trial level. And while that means we do not consult or represent those seeking to petition to modify or terminate their status under the Sex Offender Registration Act (SORA) if they're already on the Registry, helping our accused clients evaluate the potential Sex Offender Registration consequences is part of what we do.
In that regard, a common question for those accused of Criminal Sexual Conduct and facing either trial (or the option to resolve the case short of trial) is:
"Can I negotiate a plea deal in a Michigan Criminal Sexual Conduct case that specifically avoids Sex Offender Registration? If I plead to or am found guilty of CSC, can my attorney ask the Judge not to place me on the Sex Offender Registry?"
Here's the bottom-line:
In Michigan, Sex Offender Registration consequences under the Sex Offender Registration Act (SORA) are mandatory and automatically imposed by law based on the degree of Criminal Sexual Conduct a person is convicted of. Neither the Judge, the Prosecutor, nor any other person can make a decision as part of a plea negotiation, sentence agreement, or sentencing to override the law and exempt someone from Sex Offender Registration or change its nature and severity (known as the "Tier") where it would otherwise normally apply.
For example, if a Defendant is charged with First Degree Criminal Sexual Conduct (MCL 750.520b) and makes a plea deal with the Prosecution to plead (even a no contest plea) down to Third Degree Criminal Sexual Conduct (MCL 750.520d), that would of course result in a conviction. Under the SORA law, the registration consequence that automatically follows most convictions for Third Degree CSC is "Tier III" registration, meaning lifetime on the public Sex Offender Registry with quarterly updates throughout each year (known as quarterly "verification").
In the above scenario, it would not be possible for a Defendant taking the plea deal but wishing to avoid the Sex Offender Registry to negotiate with the Prosecution or receive a Cobbs evaluation from the Judge that essentially says "Okay, we'll agree as part of the deal that this Defendant does not have to be on the Registry even though the law says they normally would."
In the same way, if a Defendant goes on trial and is found guilty of Third Degree CSC, he cannot appear at his Sentencing, present mitigating evidence in favor of leniency, and hope to persuade the Judge to make an exception for him and order that he either does not have to be on the Registry, or only has to be on it under a lower Tier for less time, or only has to register non-publicly.
To the extent some players in the system may think or suggest such things are possible, the law does not provide for these options. Rather, when a person is convicted of a Criminal Sexual Conduct offense as a result of a plea or trial, or any other "registrable" offense under SORA, the Sex Offender Registry Unit at the Michigan State Police receives the information, places them on the Registry under the appropriate Tier according to law, and the Defendant will be presented with SORA Registration paperwork typically at their Presentence Investigation interview with a Probation Agent from the Michigan Department of Corrections.
So the key takeaway here is, if you are facing a Michigan Criminal Sexual Conduct charge and hope to avoid Sex Offender Registration consequences, short of having the charges dismissed outright, you will need to either be found not guilty of CSC at trial or engage in a resolution involving a plea to an offense that does not carry Sex Offender Registration consequences under SORA.
Importantly, the Michigan SORA law does contain some provisions for certain types of cases with facts where Sex Offender Registration is either exempted or lowered in Tier (resulting in shorter or non-public registration), and where someone on the Registry can Petition for removal from the Registry after being on it for a certain amount of time and without any further convictions, other issues, etc.
For instance, Second Degree CSC (MCL 750.520c) where the victim is under 13 is Tier III lifetime public registration, but if the victim is older, it may be Tier II 25 year registration. A person convicted of Third Degree CSC is exempt from registration if the victim is age 13-16, consented, and the age difference is 4 years or less. But the reason these things are possible in certain cases is that the SORA law specifically provides for them.
Another thing to know is that the Michigan SORA law contains a "catchall" provision whereby a person convicted of an offense not normally requiring Sex Offender Registration can nevertheless be "roped-in" under SORA and required to register if it is deemed a "...violation of a law of this state or a local ordinance of a municipality, other than a tier II or tier III offense, that by its nature constitutes a sexual offense against an individual who is a minor." This is per MCL 28.722(r)(vii).
A hypothetical where this could come up would be a case of someone charged with Fourth Degree CSC (MCL 750.520e) who pleads down to misdemeanor Assault and Battery (the same charge normally brought for hitting, shoving, and other unlawful but non-sexual touching).
Because whether the "catchall" definition is met or not may be very fact-dependent and subject to disagreement, where the Prosecution and Defense agree, the risk of unintended SORA registration can be reduced or eliminated by using a specifically non-sexual "factual basis" for the plea, and/or agreeing to the Court entering an Order or making a specific finding that the "catchall" definition is NOT met.
An important final word for now - this article is not a complete recitation of the law. Rather, it is only meant to be an introduction to a complex topic that might cause you to have more questions than answers. If so, we're here to help...