Failure to Report as a Sex Offender - What Your Client Doesn't Know Might Save Him
by: Breinhard • April 13, 2012 • no comments
In most contexts, ignorance of the law is no excuse. But in Failure to Report as a Sex Offender trials, the Oregon State Police may have just given your non-reporting client a freebie.
You know those forms OSP has your sex offender clients sign? The packet, with the notice and obligations of how and where to report?
They're wrong. At least, they were wrong as of a couple weeks ago. One of the SOR specialists from Salem admitted during a failure to report trial I had in late March that the forms were "in the process of being updated." Apparently OSP has other priorities than updating forms for a law passed by the Oregon Legislature last summer and effective on August 2, 2011.
Further details, jury instructions and a motion in arrest of judgment below the break.
First, a review: ORS 181.599 states that sex offenders who 1) are required to report and 2) have knowledge of the reporting requirement, commit the crime of failure to report if they 3) fail to report following any number of conditions. The Failure to Report statutes were amended in 2011 to fix the problem created by the Court of Appeals in State v. Depeche. Depeche held that because the law states that you have to report within 10 days of an event (such as a change of residence), venue for Failure to Report is the county in which the defendant is in at midnight on the tenth day after the residence was changed.**
The new law attempts to get around the venue problem by requiring offenders to report their residence in the "county of the persons last reported residence". The law then creates an affirmative defense if a defendant can demonstrate that he or she was following all the reporting regulations but reported to the wrong county within 10 days.
So where does the problem come in? ORS 181.599 is one of those odd statutes that requires a defendant to know what the law is. In particular, it requires the offender to have "knowledge of the reporting requirement." Presumably, Oregon State Police is aware of this problem, which is why they have 8 SOR specialists responsible for different counties around the state, and why they create a detailed sex offender packet that includes every time the person has registered and the notification of how that person needs to register.
But now, the law has changed, and last I checked, OSP is behind the curve. Even if they've fixed the problem in the last two weeks, there's still a big issue - if the state is relying upon a new statute that sidesteps venue by requiring an offender to report in the county they previously reported in, how will they prove the offender knew about this new requirement? For that matter, what happens if the SOR specialist takes the stand at trial (because the State is almost certain to call them) and misstates the new requirements? (That's what happened in my trial.)
Maybe I'm wrong, and "knowledge of the reporting requirement" just means that the state has to prove that the defendant knew he had a generic obligation to register because he was a sex offender. In the meantime, take these cases to trial, submit special jury instructions, and if it's a bench trial, submit "proposed instructions of law" for the judge to rule on. Then, if you lose the trial, be ready with a motion in arrest of judgment for an as-applied challenge to the constitutionality of the sex offender registration rules.
Thad Betz has written an post on this topic here , which I shamelessly cribbed for my case.
The jury instructions I submitted to the judge in my trial are attached. As is my version of Thad's motion.
Also, if any of you find out whether OSP has updated the forms yet, please let me know.
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** The legislature amended ORS 181.599 in 2009 so that the act requiring registration is when a person "moves to a new residence", instead of upon a "change in residence." There is no case law on what "moves to a new residence" means, which is one of the many reasons you should be challenging Failure to Report cases unless you have terrible facts and a great offer.)
