Overview of the Adam Walsh Act

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The Adam Walsh Child Protection Safety Act of 2006 ("ADAM WALSH ACT"), enacted on July 27, 2006, made significant changes to Federal sexual abuse, exploitation, and transportation crimes. The ADAM WALSH ACT created new substantive crimes, and increased sentences for existing crimes in Federal court. In addition, under the new ADAM WALSH ACT, many sex crimes no longer have a statute of limitations. The law also imposed restrictions on discovery in child pornography cases. It created new obstacles to pretrial release of discovery, and added searches without probable cause as a discretionary condition of probation and supervised release for persons required to register as sex offenders. The ADAM WALSH ACT permits the government to take DNA from persons who are not convicted of any crime. A person may be civilly committed if they are considered a "sexually dangerous person" and face potential life imprisonment as a result of this. Victims have new rights under the ADAM WALSH ACT in state prisoner habeas corpus proceedings. Victims have the right to receive damages of up to $150,000 in civil actions.

A main component of the ADAM WALSH ACT is the national sex offender registry law. Title I of the ADAM WALSH ACT , P. I. 109-248, entitled the Sex Offender Registration and Notification Act ("SORNA") creates a new sex offender registry law at 42 USC 16901-16962. SORNA also creates new offenses including failure to register as a sex offender, which carries a heavy sentence, and in some cases requires consecutive mandatory minimum sentences.

One is considered a "sex offender" under SORNA and required to register if s/he "was convicted of a sex offense." A sex offense includes those offenses listed in the statute that violate a state, local, tribal, foreign (only if obtained with sufficient fundamental fairness and due process under guidelines and regulations established by the Attorney General), or military law. SORNA lists those offenses that may be considered sex offenses requiring registration under the law.

Sex offenders are classified into three tiers, with the requirements for registration increasing with each tier. A tier III sex offender is a sex offender whose offense:

  • Is punishable by imprisonment for more than one year and
  • Is comparable to or more sever than the following or an attempt or conspiracy to commit such an offense
    • Aggravated sexual abuse, sexual abuse whether against an adult or a minor
    • Abusive sexual contact against a minor under the age of 13, or
  • "involves kidnapping of a minor" (unless committed by a parent or guardian), or
  • Occurred after s/he became a Tier II sex offender.

A tier II sex offense is a sex offender other than a Tier II sex offender whose offense:

  • Is punishable by imprisonment for more than one year and
  • Is comparable to one or more severe than the following offenses or an attempt or conspiracy to commit such an offense and is committed against a minor
    • Sex trafficking
    • Coercion and enticement
    • Transportation with intent to engage in criminal sexual activity
    • Abusive sexual contact, or
    • Involves
    • Use of a minor in a sexual performance
    • Solicitation of a minor to practice prostitution
    • Production or distribution of child pornography, or
    • Occurred after s/he became a Tier I sex offender.

A Tier I offender is a sex offender other than a Tier II or Tier III sex offender. This would include a person convicted of any number of times of offenses punishable for one year or less, or a person convicted of possession of child pornography who was not already a Tier I sex offender, or an 18 year old boy who had consensual sex with his 13 year old girlfriend and was not already a Tier I sex offender.

The sex offender must register and keep the registration current in each jurisdiction in which s/he resides, is employed, and/or is a student. If the conviction occurred in a jurisdiction other than where the sex offender resides, then s/he must also initially register in the jurisdiction where the conviction occurred.

Before a sex offender is released from prison for the offense, s/he must register as a sex offender with the local authorities. Shortly before the person is released, an official must inform the offender of his duties under SORNA, require the offender to "read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement," and also the official must ensure that the offender is registered. If the sex offender was not sentenced to prison, then s/he must register no more than 3 business days after sentencing. The Attorney General promulgated an interim rule that requires sex offenders to register retroactively, so even if the offender was convicted prior to July 27, 2006, they still must register under this law.

Offenders must appear in each jurisdiction where they are required to register to verify their registration. If an offender changes his or her name, residence, employment, or student status, s/he must inform at least one jurisdiction where s/he resides, is employed, or is a student in person, within three business days of the change. The offender must also keep their registration current, and remain posted on local and national websites. Tier one offenders must remain posted for 15 years, which may be reduced by five years, if s/he has a "clean record." Tier two offenders must remain posted for 25 years, and there is no relief for a "clean record." Tier three offenders must remain posted for LIFE. If a Tier three offender has a clean record for twenty-five years, and the offense was a delinquent adjudication, then s/he may only have to remain posted for twenty-five years. To have a clean record, one must

  1. Have no conviction for an offense punishable by more than one year;
  2. Have no conviction for any "sex offense" as defined in 42 U.S.C. 16911(5)-(8);
  3. Successfully complete "any periods" of supervised release, probation, or parole; and
  4. Successfully complete "an appropriate sex offender treatment program" certified by the controlling jurisdiction or the Attorney General.

Not only does the ADAM WALSH ACT require sex offenders to register, but the act creates a new federal offense for knowingly failing to register or update a registration. If an offender is prosecuted for this offense, a defendant may raise an affirmative defense that:

  1. Uncontrollable circumstances prevented the individual from complying;
  2. The individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and
  3. The individual complied as soon as such circumstances ceased to exist.

Another important point is that the ADAM WALSH ACT states that if a sex offender commits a crime of violence, then that person shall be imprisoned for not less than five years, and not more than thirty years. This punishment will be in addition to any punishment for failing to register or update registration, and will be served consecutively to that punishment. One who fails to register may also be deported or suffer other immigration consequences.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 25 years experience.

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