IV. COVERED SEX OFFENSES AND SEX OFFENDERS
SORNA refers to the persons required to register under its standards as “sex offenders,”
and section 111(1) of SORNA defines “sex offender” in the relevant sense to m
ean “an
individual who was convicted of a sex offense.” “Sex offense” is in turn defined in section
111(5) and related provisions. The term encompasses a broad range of offenses of a sexual
nature under the law of any jurisdiction⎯including offenses under federal, military, state,
territorial, local, tribal, and foreign law, but with some qualification regarding foreign
convictions as discussed below.
A. Convictions Generally
A “sex offender” as defined in SORNA § 111(1) is a person who was “convicted” of a
sex offense.
Hence, whether an individual has a sex offense “conviction” determines whether he
or she is within the minimum categories for which the SORNA standards require registration.
The convictions for which SORNA requires registration include convictions for sex
offenses by any United States jurisdiction, including convictions for sex offenses under federal,
m
ilitary, state, territorial, or local law. Indian tribal court convictions for sex offenses are
generally to be given the same effect as convictions by other United States jurisdictions. It is
recognized, however, that Indian tribal court proceedings may differ from those in other United
States jurisdictions in that the former do not uniformly guarantee the same rights to counsel that
are guaranteed in the latter. Accordingly, a jurisdiction may choose not to require registration
based on a tribal court conviction resulting from proceedings in which: (i) the defendant was
denied the right to the assistance of counsel, and (ii) the defendant would have had a right to the
assistance of counsel under the United States Constitution in comparable state proceedings. A
jurisdiction will not be deemed to have failed to substantially implement SORNA based on its
adoption of such an exception.
Since the SORNA registration requirements are predicated on convictions, registration
(or continued registration) is norm
ally not required under the SORNA standards if the predicate
conviction is reversed, vacated, or set aside, or if the person is pardoned for the offense on the
ground of innocence. This does not mean, however, that nominal changes or terminological
variations that do not relieve a conviction of substantive effect negate the SORNA requirements.
For example, the need to require registration would not be avoided by a jurisdiction’s having a
procedure under which the convictions of sex offenders in certain categories (e.g., young adult
sex offenders who satisfy certain criteria) are referred to as som
ething other than “convictions,”
or under which the convictions of such sex offenders may nominally be “vacated” or “set aside,”
but the sex offender is nevertheless required to serve what amounts to a criminal sentence for the
offense. Rather, an adult sex offender is “convicted” for SORNA purposes if the sex offender
remains subject to penal consequences based on the conviction, however it may be styled.
Likewise, the sealing of a criminal record or other action that limits the publicity or availability
of a conviction, but does not deprive it of continuing legal validity, does not change its status as
a “conviction” for purposes of SORNA.
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