As of this year, federal law will require even more people to register as sex offenders. Moreover, individual states will have to comply with strict new rules regarding state sex offender registration laws or lose federal funding. See The Sex Offender Registration and Notification Act (“SORNA”), AKA the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, 34 U.S.C. 20901 et seq., and 34 U.S.C. 20912(a), 20926-27.
What does this mean for Oregon residents? It remains to be seen.
Will there be more prosecutions?
More people convicted of STATE sex offenses now have to register under SORNA. And here is a surprise! SORNA insists that people convicted of STATE crimes have to register with STATE authorities even when state law does not require registration. 34 U.S.C. § 20913(a); Willman v. Att’y Gen. of the U.S., 972 F.3d 819, 824 (6th Cir. 2020) (“[F]ederal SORNA obligations are independent of state-law sex offender duties.”; United States v. Stock, 685 F.3d 621, 626 (6th Cir. 2012) (“The obligation SORNA does impose—the obligation to register—is imposed on sex offenders, not states . . . . That obligation exists whether or not a state chooses to implement SORNA’s requirements and whether or not a state chooses to register sex offenders at all.”).
Federal prosecutions in such cases are rare, however. I am not aware of a single case from Oregon. People who have already been convicted of sex related offenses who are not currently required to register under state law should not worry about this scenario.
Will Oregon’s legislature pass new registration laws?
Yes. State laws regulating sexual behavior change all the time anyway. And now, Oregon has an excuse to revisit these laws yet again, because our state currently deviates from the new SORNA requirements in that certain offenses are not included (or not necessarily included) in Oregon state’s sex offender registration law. For example:
online sexual corruption of a child
luring a minor
invasion of personal privacy, and
contributing to the sexual delinquency of a minor.
Another possible SORNA problem: the Oregon legislature is has resisted broadening its ex post facto registration mandates.
History suggests that Oregon will move to comply with the new federal requirements in the next year or two and future defendants accused of relatively less serious sex-related offenses will be out of luck — they will soon have to register despite posing little, if any, risk to the public.
Will STATE courts prosecute past offenders for failing to comply with new laws? Again, I think it’s unlikely. Why pursue a difficult case when you can just go for the low hanging fruit. (Charles Doyle of the Congressional Research Service helpfully summarizes past efforts to challenge ex post facto prosecutions here).
What about registration relief?
A much greater concern is the fate of Oregon’s relatively new, evidence-based sex offender registration relief law.
The feds want all sex offenders to have to register for long periods of time. Oregon’s relief law allows some people to be removed from the registry relatively quickly. Can registration relief laws be used as a SORNA workaround? Or will all such laws be effectively swallowed up in the mindless maw of federal regulation?