Specific Offenses Included Under SORNA

Most jurisdictions are familiar with the general categories of sex offenses that require registration under the Sex Offender Registration and Notification Act (SORNA); however, several sex offenses encompassed by SORNA merit special mention. Jurisdictions will need to ensure that all offenders convicted of the following categories of offenses are included in their registration schemes:

  "Intent" offenses
  Tribal offenses
  Territory offenses
Military offenses
Federal offenses
Foreign offenses

"Intent" Offenses

SORNA clearly identifies that jurisdictions must register sex offenders convicted of "attempts" and "conspiracies" to commit SORNA qualifying sex offenses. The National Guidelines on Sex Offender Registration and Notification clarify that, within this requirement, jurisdictions must register offenses that include a specific element of "intent" to commit a sex offense. Examples of this requirement include, "breaking and entering with the intent to rape," or "assault with intent to commit aggravated sexual assault."

For further explanation, see page 18 of the National Guidelines on Sex Offender Registration and Notification.

Tribal Offenses

Many state and territorial jurisdictions are unfamiliar with the criminal codes governing Indian Country. Any tribal offense that meets the SORNA definition of "sex offense" must be captured in a jurisdiction's registration scheme. Because federal law limits all tribal convictions to sentences of less than 1 year, by default, these convictions fall into a SORNA tier I classification. However, all registration jurisdictions have discretion to classify these convictions in a higher tier.

Currently, some tribes do not maintain a written criminal code. There are multiple strategies that jurisdictions can employ to capture the tribal offenses that must be registered under SORNA. The SMART Office is available to discuss possible legislative or regulatory solutions to this issue.

Territory Offenses

SORNA incorporates the five principal U.S. territories (Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands) as registration jurisdictions. All SORNA registration jurisdictions will need to specifically include on their registry relevant sex offenders convicted from any of these five principal U.S. territories.

Military Offenses

Determining which military sex offense convictions require registration can be a complicated task. SORNA references the relevant offenses in subsections (5)(a)(iv) and (6) of 42 U.S.C. § 16911. By way of a series of cross-references, the list of military convictions that require registration is found in the Code of Federal Regulations (CFR), specifically at 28 C.F.R. § 571.72. The sex offenses listed in this CFR provision historically have corresponded to the Uniform Code of Military Justice (UCMJ). However, the UCMJ was restructured and expanded to include additional offenses with new organization at the end of 2007 (see 10 U.S.C. § 920 et. seq.).

The CFR provision has not yet been amended following the restructuring of the UCMJ. The SMART Office is currently working with the U.S. Department of Defense (DoD) to update the CFR provision and to facilitate the updating of DoD's standing instruction regarding sex offender registration.

The SMART Office is available to discuss the details of these military regulations and military offense registration requirements. When drafting legislation, it is important for jurisdictions to remember that many military offenses (e.g., conduct unbecoming) do not have a substantially similar counterpart on any state, tribal, or territory level.

Federal Offenses

SORNA specifically lists the federal sex offenses that require registration by way of reference to U.S. Code chapter headings. For clarity, the specific federal offenses requiring registration, as listed in SORNA, can be found in the SMART Compliance Checklist.

As with military offenses, there are federal offenses requiring registration (such as engaging in foreign travel with the intent to participate in illegal sexual conduct with a minor) that do not have a substantially similar counterpart on the state, tribal, or territory level.

Foreign Offenses

SORNA requires that jurisdictions register sex offense convictions obtained in certain foreign countries. The National Guidelines on Sex Offender Registration and Notification recognizes that some foreign judicial systems may not sustain court systems with equivalent fundamental fairness and due process that is constitutionally mandated in the United States. In the Guidelines, four countries—United Kingdom, Canada, Australia, and New Zealand—are recognized as maintaining judicial systems equivalent to the United States, and all sex offenders present in the United States with a SORNA-qualifying conviction from one of these listed countries must be registered. For all other countries, jurisdictions will need to refer to the U.S. Department of State's Annual Country Report on Human Rights for the year the conviction was obtained to determine if an offender received the same fundamental fairness and due process he or she would have received if prosecuted in the United States and, if so, then require the offender to register.

To find out if a certain foreign country met this standard for a particular year, therefore requiring registration for any sex offense conviction during that year, go to the State Department's Human Rights web page.

Capturing foreign convictions presents a challenge in legislative or regulatory drafting, as a jurisdiction strives toward compliance with SORNA. The SMART Office is available to discuss additional ideas or assistance toward that end.