Department of Justice

Office of the Attorney General

Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act, as Amended, Page 11-13

C. Coverage of Offenses

1.

'Criminal offense against a victim who is a minor''. The Act requires registration of any person convicted of a ''criminal offense against a victim who is a minor.'' Subsection (a) (3) (A) defines the relevant category of offenses. The general purpose of the definition is to ensure comprehensive registration for persons convicted of offenses involving sexual molestation or sexual exploitation of minors. ''Minor" for purposes of the Act means a person below the age of 18. The specific clauses in the Act's definition of ''criminal offense against a victim who is a minor'' are as follows:

(l)-(2)

Clauses (i) and (ii) cover kidnapping of a minor (except by a parent) and false imprisonment of a minor (except by a parent) . All states have statutes that define offenses--going by such names as ''kidnapping, ' ' ''criminal restraint, '' or ''false imprisonment' '--whose gravamen is abduction or unlawful restraint of a person. States can comply with these clauses by requiring registration for persons convicted of these statutory offenses whose victims were below the age of 18. It is a matter of state discretion under these clauses whether registration should be required for such offenses in cases where the offender is a parent of the victim.

(3)

Clause (iii) covers offenses consisting of ''criminal sexual conduct toward a minor.'' States can comply with this clause by requiring registration for persons convicted of all statutory sex offenses under state law whose elements involve physical contact with a victim--such as provisions defining crimes of ''rape,'' sexual assault, sexual abuse, '' or ''incest' '--in cases where the victim was a minor at the time of the offense. Coverage is not limited to cases where the victim's age is an element of the offense (such as prosecutions for specially defined child molestation offenses). It is a matter of state discretion under this clause whether registration should be required for sex offenses that do not involve physical contact, such as exhibitionism offenses.

(4)

Clause (iv) covers offenses consisting of solicitation of a minor to engage in sexual conduct. The notion of ''sexual conduct'' should be understood in the same sense as in clause (iii). Hence, states can comply with clause (iv) by consistently requiring registration, in cases where the victim was below the age of 18, based on:

--A conviction for an offense involving solicitation of the victim under a general attempt or solicitation provision, where the object offense would be covered by clause (iii), and

--A conviction for an offense involving solicitation of the victim under any provision defining a particular crime whose elements include soliciting or attempting to engage in sexual activity involving physical contact.

(5)

Clause (v) covers offenses consisting of using a minor in a sexual performance. This includes both live performances and using minors in the production of pornography.

(6)

Clause (vi) covers offenses consisting of solicitation of a minor to practice prostitution. The interpretation of this clause is parallel to that of clause (iv). States can comply with clause (vi) by consistently requiring registration, in cases where the victim was below the age of 18, based on:

--A conviction for an offense involving solicitation of the victim under a general attempt or solicitation provision, where the object offense is a prostitution offense, and

--A conviction for an offense involving solicitation of the victim under any provision defining a particular crime whose elements include soliciting or attempting to get a person to engage in prostitution.

(7)

Clause (vii) covers offenses consisting of any conduct that by its nature is a sexual offense against a minor. This clause is intended to ensure coverage of convictions under statutes defining sex offenses in which the status of the victim as a minor is an element of an offense, such as specially defined child molestation offenses, and other offenses prohibiting sexual activity with underage persons. States can comply with this clause by including convictions under these statutes in the registration requirement. A proviso at the conclusion of the Act's definition of ''criminal offense against a victim who is a minor' ' allows states to exclude from registration requirements persons convicted for conduct that is criminal only because of the age of the victim if the perpetrator is 18 years of age or younger. Whether registration should be required for such offenders is a matter of state discretion under the Act.

(8)

Considered in isolation, clause (viii) gives states discretion whether to require registration for attempts to commit offenses described in clauses (i) through (vii). However, state discretion to exclude attempted sexual offenses against minors is limited by other provisions of the Act, since any verbal command or attempted persuasion of the victim to engage is sexual conduct would bring the offense within the scope of the solicitation clause (clause (iv), and make it subject to the Act's mandatory registration requirements. Hence, the simplest approach for states is to include attempted sexual assaults on minors (as well as completed offenses) uniformly as predicates for the registration requirement.

2.

''Sexually violent offense''. The Act prescribes a 10-year registration requirement for offenders convicted of a ''sexually violent offense, '' as well as for those convicted of a ''criminal offense against a victim who is a minor.'' Subsection (a) (3) (B) defines the term ''sexually violent offense.'' The general purpose of the definition is to require registration of persons convicted of rape or rape-like offenses--i.e., non-consensual sexually assaultive crimes involving penetration--regardless of the age of the victim. The definition refers specially to any criminal offense that consists of aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18 of the United States Code, or as described in the state criminal code), or an offense that has as its elements engaging in physical contact with another person with intent to commit such an offense.

In light of this definition, there are two ways in which a state can satisfy the requirement of registration for persons convicted of ''sexually violent offenses''

First, a state can comply by requiring registration for offenders convicted for criminal conduct that would violate 18 U.S.C. 2241 or 2242--the federal ''aggravated sexual abuse'' and ''sexual abuse'' offenses--if prosecuted federally. (The part of the definition relating to physical contact with intent to commit aggravated sexual abuse or sexual abuse does not enlarge the class of covered offenses under the federal law definitions, because sections 2241 and 2242 explicitly encompass attempts as well as completed offenses.)

Second, a state can comply by requiring registration for offenders convicted of the state offenses that correspond to the federal offenses described above--i.e., the most serious sexually assaultive crime or crimes under state law, covering non-consensual sexual acts involving penetration-- together with state offenses (if any) that have as their elements engaging in physical contact with another person with intent to commit such a crime.

Like the other requirements of the Act, the requirement to register persons convicted of sexually violent offenses, regardless of the age of the victim, establishes only a baseline for state registration programs. Whether registration should be required for additional offenses against adult victims is a matter of state discretion under the Act.

3. ''Comparable * * * range of offenses".

As a result of language added by the CJSA amendments, states need not comply exactly with the specific offense coverage requirements in subparagraph (A) or (B) of subsection (a) (3). Rather, a state may comply with the Act by requiring registration for persons convicted of offenses in a ''range of offenses specified by State law which is comparable to or which exceeds" the range of offenses described in the Act.

This change reflects a practical recognition by Congress that exact state compliance with the Act's offense coverage specifications may be difficult because of the degree of detail in the Acts definitions and because of the variations among different jurisdictions in the terminology and categorizations used in defining sex offenses. See H.R Rep. No. 256, 105th Cong. 1st Sess. 15 (1997). As a result, Congress was concerned that some states ''may inadvertently find themselves out of compliance with the Wetterling Act' ' because of the state registration provisions ''are not exactly congruent'' with the Act's offense categories, ''even if the offenses covered by the [state] program are much broader in other respects then required by the Wetterling Act.'' Id. The language concerning coverage of a ''comparable'' range of offenses was added to address this concern.

States should aim to have their registration offenses fully encompass the offense categories described in the Act and will be assured of compliance with the Act's offense coverage requirements if they do so. However, in light of the CJSA amendments affording a degree of flexibility concerning offense coverage, inadvertent departures from the Act's offense category specifications will not necessarily result in a finding of non-compliance. Such departures will be allowed if, in the judgment of the reviewing, they do not substantially undermine the objective of comprehensive registration for persons convicted of crimes involving sexual molestation or sexual exploitation of minors, and persons convicted of rape or rape-like crimes against victims of any age.

In addition, in assessing compliance, the reviewing authority may consider whether a state program imposes registration requirements that are broader in other respects than the offense coverage specifications of the Act. For example, consistently requiring registration for persons convicted of attempted offenses, and of sexual assaults against adult victims other than rape-like offenses, goes beyond the Act's mandatory standards Such additional coverage may be considered by the reviewing authority in deciding whether the overall offense coverage under a state program ''is comparable to or * * * exceeds'' the Act's offense coverage specifications.