Sometimes when people are charged with sex crimes, they are able to resolve the case with a non-sex offense and an agreement with the prosecution that the accused does not have to register. It is important for any practitioner to be aware that even taking a non-sex plea can require a registry if the complainant was under 18 years old at the time of the allegation. There is bad case law in Michigan, however, that requires a person to still register under what is called the catchall exception to the registry.
A situation like this may come up, for example, if a stepdad is charged with sexually assaulting his stepdaughter and ends up pleading to a simple assault and battery. Even though the crime the dad pled to sounds non-sexual in nature, a few things are critical. First, it is important that the facts used to establish the factual basis for the plea do not include any hint of sexual misconduct. So, for example, if the stepdaughter testified that her stepfather grabbed her arm or did something else that could be considered an assault, a skilled lawyer will use that fact to establish a proper factual basis. Second, the lawyer must secure an Order of Non-registration signed by the court saying that the provisions of the catchall exception do not apply to the facts of the particular case. In circumstances where lawyers miss this point, sometimes probation will come back later and tell the person later that they are required to comply with registering on the list. It makes it more difficult to clean up and confuses everyone involved. It is important to get this right because registering as a sex offender, as you would imagine, is a big deal.
The Option for a Plea
There are many crimes that can be used as the basis for a plea that do not inherently involve a sex-driven crime. For example, aggravated assault, assault and battery, disorderly conduct, felonious assault, assault with intent to do great bodily harm, and other crimes along these lines are often good resolutions. If a future employer sees this kind of conviction on a criminal record, they could easily assume that it was a bar fight or something along those lines that led to the conviction. Child abuse is also often a plea option to consider when a child is involved. There are ways to do a child abuse conviction without sex offender registry as well.
There is also a very old, outdated law in Michigan that remains on the books called seduction. Seduction is a five-year felony that does not require sex offender registry. To establish that seduction took place, the facts simply need to show that the accused flirted with an unmarried woman. The law is as outdated as it sounds. However, sometimes this is a good option to choose in an effort to protect the accused from having to register. Indecent exposure is an offense that also no longer requires registry unless it is aggravated indecent exposure. Even then, a conviction only requires public registry when a child is the person who witnessed the activity.
Discuss the Catchall Exception with a Knowledgeable Attorney
When you or someone you love is facing a sex crime, it is important to have a lawyer who fully understand the ins and outs of the catchall exception. This is one of the biggest mistakes most lawyers make when they do not specialize in criminal sexual conduct cases. We are always happy to answer questions and give you the best strategies to avoid the registry if that is one of your goals. Call our office today to set up a consultation if you would like more answers and information about what to expect.
It is also important to us that other lawyers get this right. So even if you are represented by a lawyer who does not understand the catchall possibilities, our office is always happy to share our example Order of Non-Registration with other lawyers. We have the sample order right at our fingertips and can send it over to any lawyer who calls or e-mails by dropbox. Shannon has spoken about the catchall exception to the Criminal Defense Attorneys of Michigan and through the Institute of Continuing Legal Education. She is happy to have the office forward materials from those conferences to you or your lawyer as well if this could help. While Smith Lehman always loves to help as many clients as we can, we are committed to making sure other lawyers get this right for their clients and cases as well!