Megan’s Law Revisited: Retroactivity Clause Retroactively Removed

Megan’s Law Revisited: Retroactivity Clause Retroactively Removed

On July 9, 2012, I wrote about what I believed to be the extremely unfair and arguably unconstitutional retroactive application of the new Megan’s Law legislation in Pennsylvania.  I wrote about this in my post titled “Me-A-Gan:  Once a Sex Offense, Always a Sex Offender”.  This law is due to go into effect on December 20, 2012.  I am happy to report that much of the unfair part of the retroactive portion of the law that I wrote about has been removed.  This author clearly had nothing to do with this change but is happy nonetheless.  I still believe that there should be no retroactive application of this law, however, this is certainly a step in the right direction.

The retroactive portion of the law essentially said that if you were previously convicted of an enumerated sex offense at any time in the past and were in jail or on probation for any offense–possession of drugs, DUI, retail theft or any other minor misdemeanor–on December 20, 2012, you were required to register as a sex offender.  The absurdity and unfairness of this law seems so obvious, right?  Why should someone who was convicted of a sex offense over twenty years ago and never had to register as a sex offender because Megan’s Law didn’t exist, now have to register because they are probation for a retail theft on December 20, 2012?  They shouldn’t.  And, now they don’t have to.

Earlier this month, Governor Corbett signed into law amendments to the newest Pennsylvania Megan’s Law, which greatly reduces the retroactivity of the law.  The new amendment requires retroactive registration as a sex offender only for those who are still serving a sentence on December 20, 2012 “as a result of a conviction for a sexually violent offense.”  These crimes are defined as “sexually violent offenses”.  Therefore, only those who are still imprisoned or under court supervision (probation or parole) for the sexually violent offense when the law goes into effect will be required to register as a sex offender.  This is obviously a much more fair approach.  But, there are many more crimes that are included as “sexually violent offenses”, including indecent assault, statutory sexual assault, unlawful restraint and false imprisonment, to name a few.  This is where I still think there are constitutional questions.  It doesn’t seem fair if you pled guilty to indecent assault earlier this year and received two years of probation with the understanding that there were no Megan’s Law requirements only to find out that on December 20, 2012, you will have to register as a sex offender under Megan’s Law.  When you entered into that plea earlier in the year, did you do so in a knowing, intelligent and voluntary manner understanding all of the repercussions?  Of course not.  And, for that reason, I believe there will still be challenges to the constitutionality of the law.

In addition, the retroactivity for the juvenile portion of the law has also been curtailed.  The amendment will require retroactive registration for children only if the child is still “subject to the jurisdiction of the court on the basis of” a sex offense.  Juvenile sex offenses are listed here but include rape, involuntary deviate sexual intercourse, aggravated indecent assault or attempt, conspiracy or solicitation to commit any of those crimes.  So, like the adult, the juvenile must still be under court supervision for the sexual offense to trigger registration.

If interested, the entire text of the statute can be found here.  Hopefully, the government will get rid of the retroactivity all together before December 20, 2012.  Stay tuned…